Citation Nr: 1610669	
Decision Date: 03/16/16    Archive Date: 03/23/16

DOCKET NO.  09-23 973	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a right knee disorder, including as secondary to service-connected disability. 

2.  Entitlement to service connection for a back disorder (also claimed as Intervertebral Disc Syndrome (IVDS), Degenerative Disc Disease (DDD), and muscle damage).

3.  Entitlement to service connection for a bilateral foot condition.

4.  Entitlement to service connection for a lung disorder (also claimed as bronchitis, emphysema, and scarring of the lungs).

5.  Entitlement to an initial compensable rating for service-connected left knee arthritis.

6.  Entitlement to an initial rating higher than 30 percent for service-connected migraine headaches.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. L. Wallin, Counsel


INTRODUCTION

The Veteran served on active duty from October 1973 to October 1993.

The appeal to the Board of Veterans' Appeals (Board/BVA) is from August 2010 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

The Board remanded the claims in January 2012 to afford the Veteran a hearing at the RO before a Veterans Law Judge (VLJ) of the Board - commonly referred to as a Travel Board hearing.  That hearing was held before the undersigned VLJ in December 2013.  A copy of the hearing transcript is of record.

The Board subsequently, in May 2014, denied claims for sinusitis, a bilateral shoulder condition, and a skin condition, but granted service connection for essential tremors of the hands; consequently, those claims are no longer at issue.  

The Veteran did not contest the initial rating or effective date assigned for his hand tremors, and he had to separately appeal these "downstream" issues for that claim to still be in dispute.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  He also needed to appeal the other claims to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC) or request reconsideration of the Board's decision concerning those other claims, which he did not.

In that same decision, however, the Board additionally determined that new and material evidence had been submitted to reopen the claim for a lung condition.  But rather than immediately readjudicating this claim on its underlying merits, that is, on a de novo basis, as well as the claims pertaining to a right knee condition, low back condition, cyst on the back, bilateral foot condition, a dental disorder and left knee arthritis, the Board instead remanded these claims to the Agency of Original Jurisdiction (AOJ) for further development and consideration.

While these claims were on remand, the RO or Appeals Management Center (AMC) granted service connection for a subcutaneous nodule on the upper back (see October 2014 rating decision) and for temporomandibular joint (TMJ) disorder (see April 2015 rating decision).  So these claims also are no longer at issue.

In May 2014 the Board additionally noticed that service connection had been granted for migraine headaches in March 2012 and, in response, a timely Notice of Disagreement (NOD) had been submitted in May 2012 disputing the initial 30 percent rating assigned for this disability.  Therefore, the Board remanded this claim for issuance of a Statement of the Case (SOC) concerning this claim and to provide the Veteran opportunity to complete the steps necessary to perfect his appeal of this claim to the Board by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement).  See 38 C.F.R. § 20.200 (2015); see also Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  To date, however, an SOC has not been issued concerning this claim.  And as consequently there was not the acceptable substantial compliance with this remand directive, the Board is again remanding this claim to the AOJ.  See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error in failing to ensure this compliance); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

Further, in May 2014, the Board noted that the electronic (i.e., paperless) file was reviewed and contained evidence received in April 2014, so the month prior, addressing the issue of entitlement to service connection for a cervical spine condition.  The Board additionally noted the claim had been denied by the Board in a January 2012 decision and appealed to the higher Veterans Court (CAVC).  However, the Court did not disturb the Board's denial of service connection for a cervical spine condition, so the denial is a final and binding determination.  38 U.S.C.A. §§ 7103, 7104(a) 38 C.F.R. §§ 20.1100, 20.1104.  But in light of the procedural history and the newly-received evidence, the Board then proceeded to refer the issue of whether new and material evidence had been received to reopen this claim for service connection for a cervical spine condition to the AOJ for appropriate action.  To date, however, this has not been accomplished and the Board still does not have jurisdiction over this additional claim.  So this claim is once again referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015). 

As a final preliminary matter, the Board sees the Veteran appealed a May 2013 rating decision confirming and continuing the 0 percent (so noncompensable) evaluation for his service-connected bilateral hearing loss.  See NOD received in August 2013.  An SOC concerning this claim was issued in September 2015, but he did not in response perfect his appeal of this claim to the Board by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement).  See 38 C.F.R. § 20.200 (2015).  Thus, the Board does not have jurisdiction to consider this claim, only instead the several others indicated. 



FINDINGS OF FACT

1.  The most probative (meaning most competent and credible) medical and other evidence of record preponderates against finding that the Veteran has a right knee disorder that is due to events occurring during his active military service or that this disorder is otherwise related or attributable to his service, including secondarily, meaning proximately due to, the result of, or aggravated by a 
service-connected disability (the left knee arthritis, in particular).

2.  The most probative (meaning most competent and credible) medical and other evidence of record preponderates against finding that the Veteran's back disorder, variously diagnosed as degenerative changes of the thoracic spine and multi-level DDD of the lumbar spine, is due to events occurring during his active military service, or that he had arthritis in this segment of his back within the year immediately following his discharge from service in October 1993, or that this disorder is otherwise related or attributable to his service.

3.  The most probative (meaning most competent and credible) medical and other evidence of record preponderates against finding that the Veteran has a bilateral foot disorder, variously diagnosed as onychomycosis and mildly dystrophic nails, because of events occurring during his active military service.

4.  The most probative (meaning most competent and credible) medical and other evidence of record preponderates against finding that the Veteran has a lung disorder owing to events occurring during his active military service, including especially exposure to welding gases and fumes.

5.  Throughout the entire appeal period, the service-connected left knee arthritis has not resulted in limitation of flexion to 60 degrees or limitation of extension to 5 degrees; there additionally has been no evidence of recurrent subluxation or lateral instability or satisfactory evidence of painful motion causing additional functional limitations, including additional limitation of motion, such as during prolonged or repetitive use of this knee or when the symptoms referable to this knee are most prevalent ("flare ups").


CONCLUSIONS OF LAW

1.  The criteria are not met for entitlement to service connection for a right knee disorder, including as secondary to service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015).

2.  The criteria are not met for entitlement to service connection for a back disorder, also claimed as IVDS, DDD, and muscle damage.  38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015).

3.  The criteria are not met for entitlement to service connection for a bilateral foot condition.  38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2015).

4.  The criteria are not met for entitlement to service connection for a lung disorder (also claimed as bronchitis, emphysema, and scarring of the lungs).  38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2015).

5.  The criteria are met, however, for at most a 10 percent initial rating for the 
service-connected left knee arthritis.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2015).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits and, preferably, prior to an initial unfavorable decision on a claim by the AOJ, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this necessary supporting evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

When the claim is for service connection, the notice should also address the "downstream" disability rating and effective date elements of the claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 83 F.3d 1311 (2007).

The Veteran's left knee claim on appeal arises from his disagreement with the initial disability evaluation assigned following the granting of service connection for left knee arthritis.  The Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  This is because the initial intended purpose of the notice has been served.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  So, in this situation, VA is not required to provide additional VCAA notice concerning the "downstream" disability rating and effective date elements of the claim.  See also VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved.  And the RO provided the Veteran this required SOC citing the applicable statutes and regulations and containing discussion of the reasons and bases for assigning the particular initial rating that it did.

With regards to the several service-connection claims, the RO provided the Veteran pre-adjudication notice by way of letters dated in February 2008 and March 2010, which included the required information concerning the downstream elements of these claims pursuant to the holding in Dingess.

The duty to assist conversely is not abrogated by the granting of service connection.  To satisfy its additional obligation to assist the Veteran with these claims (increased rating and service connection claims alike), VA has obtained his service treatment and personnel records, also assisted him in obtaining other relevant evidence - including concerning his evaluation and treatment since service, additionally provided him VA compensation examinations, including for medical nexus opinions concerning the etiology of his claimed conditions and to assess or reassess the severity of his service-connected disability.  He was also afforded the opportunity to give testimony before the Board (the transcript of which, as mentioned, since has been associated with the virtual record).  

Also consider that when, as here, there has been a hearing, the holding in Bryant v. Shinseki, 23 Vet. App. 488 (2010), is implicated.  In that decision the Court held that the presiding hearing officer's duties under section 3.103(c)(2) are twofold.  First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id., at 496.  Second, the presiding hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.

Here, the undersigned VLJ that presided over the December 2013 Travel Board hearing correctly identified the issues on appeal and pertinent treatment records in the file or still needing to be obtained.  The undersigned also noted the importance of having supporting nexus evidence establishing the required correlation between the claimed disabilities and service (as concerning the service-connection claims).  As well, in regards to the claim for a higher initial rating for the disability already determined to be service connected, the presiding judge emphasized the importance of showing the existing rating is deficient, given the severity of the disability and its effect on the Veteran's functioning.  Indeed, the Board remanded the claims following the hearing, for further development, partly because of information obtained during the proceeding.  The Veteran has not alleged there was any deficiency in the conducting of the hearing, including in relation to the presiding judge's duties under §  3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98.  Moreover, even assuming for the sake of argument there was such a deficiency, the Board finds that it did not prejudice the claims.  In Bryant, 23 Vet. App. at 498-99, the Court held that, although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability (in a claim concerning entitlement to service connection), the purpose of 38 C.F.R. § 3.103(c)(2)  nonetheless had been fulfilled because the record reflected that these issues were developed by VA and through the Board's multiple remands.  Here, in discussion during the hearing of the importance of having the required medical nexus evidence or showing a disability was worse than rated, the Veteran demonstrated his actual knowledge of these evidentiary requirements lending credence to his claims.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  There also is no indication he had any additional information or evidence to submit, that is, other than that since obtained on remand.

All known and available records relevant to the claims at issue in this appeal have been obtained and associated with the file, to the extent obtainable, and the Veteran has not contended otherwise, much less shown that any notice or assistance defect, even on the chance one has occurred, is unduly prejudicial, meaning necessarily outcome determinative of his claims, i.e., more than harmless.  Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); 38 C.F.R. § 20.1102.

II. 
Analysis

In adjudicating these claims, the Board has reviewed all of the evidence in the Veteran's virtual record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

A. Service-Connection Claims

Establishing entitlement to direct service connection generally requires having competent and credible evidence of:  (1) the currently-claimed disability or, at the very least, showing it has existed at some point since or contemporaneous to the filing of the claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation or "nexus" between the disease, injury or event in service and the disability being presently claimed.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

For some 'chronic diseases,' such as arthritis, presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a '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.  38 C.F.R. § 3.303(b).  

If chronicity in service is not established, or legitimately questionable, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Service connection is also permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a) and (b) (2015).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  A finding of secondary service connection requires competent and credible evidence connecting the asserted secondary disability to the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997).

In this decision the Board has considered all lay and medical evidence as it pertains to these claims.  38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a).  In rendering a decision on appeal, the Board must analyze the competency and credibility and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide reasons or bases for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995). 

(i) Right Knee Disorder

The Veteran was diagnosed with a right knee strain on VA examination in 2010.  The question is whether this disability incepted during his service or is otherwise related or attributable to his service or a service-connected disability.  And after reviewing the evidence, the Board finds that service connection must be denied because the preponderance of the evidence is against these posited correlations.  

During his December 2013 Board hearing, the Veteran testified that he had first sought treatment for his right knee during service and was diagnosed with arthritis.  He further testified that the injury to the right knee and pain had begun in the military and had continued after his discharge, so persisted.  

The Veteran's STRs show he hit his knee (the side was not identified) on a table in September 1974.  He was diagnosed with a contusion (which was later identified as a left knee contusion in July).  X-rays were negative for fracture.  An entry dated in June 1978 shows he had an injury to both knees two weeks prior (bumped knees).  He complained of knee pain, weakness, and catching.  X-rays of both knees were negative. 
 
To the extent the Veteran is asserting that he has had continuing or ongoing problems with his right knee since service, these statements are not found to be credible for the purpose of establishing a continuity of symptomatology since his service.  38 C.F.R. § 3.303(b); Layno v. Brown, 6 Vet. App. 465 (1994); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  Notably, there were no further complaints or treatment of the right knee in service after June 1978.  Moreover, both the June 1993 separation reports of medical history and examination are unremarkable for indication of a right knee disorder.  While he reported swollen and painful knee joints after exercise, there were no objective clinical findings such as a pertinent diagnosis of a right knee disorder.  Also realize that this notion of showing continuity of symptomatology since service only applies to the disorders specifically defined as "chronic" according to 38 C.F.R. § 3.309(a), and right knee strain (current diagnosis) is not such a condition.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2012).  The Veteran has not been diagnosed with right knee arthritis either during service or since his discharge as claimed.  Rather, the arthritis diagnosis only has been made as concerning his left knee, and service connection already has been granted for that other knee.

The Veteran's service ended in October 1993 and the first post-service documented complaints of right knee disability was when he filed his claim in 2010, so not until some 17 years later.  On VA examination in 2010, he reported dull constant pain in this knee, as well as stiffness and weakness.  Flare-ups of knee pain were associated with negotiating stairs and manifested by pain and inflammation.  He used no assistive devices (cane, crutch, etc).  

Thus, the evidence of record reveals there was a prolonged period following conclusion of his service (17 years) without relevant medical complaint or treatment, and this may be considered as evidence against the claim, albeit cannot be the sole or only basis for denying the claim.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim).  See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).  In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").  Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

As a chronic (meaning permanent) right knee disorder was not shown during service or for many years thereafter, service connection may only be granted if there is some competent and credible evidence otherwise linking or attributing the current disability owing to this condition to the Veteran's service.  See 38 C.F.R. § 3.303(d) (permitting the granting of service connection even when the initial diagnosis was post service, so long as the evidence, including that pertinent to service, establishes the disorder was incurred in service).  Here, though, there is no such competent and credible evidence, even after the Veteran was examined by VA in 2010 and 2014.

After reviewing the claims file (including the STRs) and physically examining the Veteran, the May 2010 examiner was unable to say whether the Veteran's current right knee strain was caused by or related to the injury noted in 1978 without resorting to mere speculation.  In pertinent part, the examiner explained it was due to lack of continued treatment associated with the right knee to date.  

But as the Board explained when remanding this claim for supplemental comment, the essence of § 3.303(b), to the extent applicable to claims for arthritis rather than a mere strain, is continuity of symptoms, not necessarily treatment for them.  See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Consider as well that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).

Here, though, the July 2014 VA examiner on remand determined that it was less likely than not that the Veteran had a right knee disability that was incurred in or otherwise the result of his military service as there was no right knee pathology identified.  The examination of his right knee was normal.  The examiner reasoned that the Veteran's STRs documented acute and transitory soft tissue injuries of the right knee with negative X-rays during service.  Arthritis, incidentally, has to be objectively confirmed by X-ray.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  The examiner also found that there was no chronic (meaning permanent) right knee condition onset during or within two years of military service.  The examiner further noted that multiple private medical records dated between 1995 and 2010 were unremarkable (silent) for any knee condition, other than the left knee in 1997.  The examiner explained that X-rays were not ordered as the evaluation was normal and he did not want to expose the Veteran to unnecessary radiation; however, the examiner explained that, even if radiologic changes were found today, it was 20 years post-service and would most likely be due to the post-service events and aging and a nexus could not be made between any such potential findings and the Veteran's military service.   So that examiner disassociated any current disability from the Veteran's service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").


The Board realizes the Veteran is competent to report symptoms of pain, swelling, stiffness, and weakness in his right knee.  But he is incompetent to determine whether these symptoms are a manifestation of a disability or disease owing to his military service.  See Jandreau, supra.  Medical evidence, not just lay evidence, is required to establish this association.  Moreover, this is a case-by-case determination.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  See also 38 C.F.R. § 3.159(a)(1) and (a)(2) defining what constitutes lay versus medical evidence.

A chronic (meaning permanent) right knee disorder was not diagnosed during service or for many years thereafter.  No symptoms actually related to the right knee have been identified in the medical record for continuity of symptomatology after the Veteran's discharge from service, even if this type of condition being claimed was subject to this relaxed evidentiary pleading, which, as explained, according to the holding in Walker, it is not.  The competent and credible medical evidence of record does not support finding that a right knee disorder, at one time diagnosed as right knee strain, is related or attributable to the Veteran's active duty service.  

The Veteran has also alleged a right knee disorder is the result of his service-connected left knee arthritis.  However, the preponderance of the evidence is against any such notion.  Notably, the July 2014 VA examiner opined that the Veteran's right knee symptoms without clinical examination findings were not proximately due to, the result of, or aggravated by his left knee disability.  The examiner reasoned that, per medical literature, it was unlikely that injury to one knee would significantly impact the opposite uninjured limb unless the injury resulted in alteration of the individual's gait pattern to the extent there was a clinically obvious lurching type gait, in other words a significant limp.  Additionally, the significantly abnormal gait or limp would most likely need to be present over an extended period of time (years), in order to impact the opposite extremity.  The examiner further noted that a temporary abnormality in gait, e.g. a limp over weeks or months, was unlikely to have any effect on the opposite leg.  The use of cast, cane, or crutches was also unlikely to have any major impact on the stress borne by the injured limb.  

Literature further showed the increased body weight did have a detrimental effect on both lower extremities and magnified all risk factors for joint pain and deterioration.  The examiner indicated that, per study, researchers compared multiple surgical cases, with review of knee X-rays taken before, at eight months, and at five years after knee operation and a deterioration in the state of the opposite tibiofemoral compartment was not seen.  The Veteran did not have any knee surgery.  The examiner found no objective evidence that the left knee arthritis had resulted in a markedly abnormal gait.  The current evaluation of both knees was normal and a prolonged severe gait disturbance would be required in order to consider a nexus between any such potential right knee radiologic findings and the left knee disability that is service-connected.

The only evidence of record supporting the Veteran's contentions is his personal statements and testimony.  His statements do not establish the required nexus between any acquired pathology and his military service or his service-connected left knee arthritis.  Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise.  It requires specialized training for a determination as to causation and is not susceptible of lay opinions on etiology.  See Jandreau, 492 F.3d at 1377, n. 4.  Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran about the origins of his right knee disorder because he is not qualified to offer such opinions.  Likewise, his representative is not competent to provide a probative opinion on the question of etiology, either.  

In certain instances, lay evidence has been found competent with regards to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.'  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, so conversely, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony 'falls short' in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).  Keep in mind that, in this particular instance, VA did indeed obtain a medical opinion on this determinative issue of causation, and the opinion was unfavorable to the claim, not instead supportive of it.

Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disorder on a direct, presumptive, or secondary basis, and thus, the benefit-of-the-doubt doctrine does not apply.  As such, the evidence is insufficient to support a grant of service connection.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001).

(ii) Back Disorder

The Veteran has been diagnosed with multi-level DDD of the lumbar spine and degenerative changes of the thoracic spine and, thus, the threshold preliminary issue of whether he has current disability is not in dispute.  The question, instead, is whether this disability incepted during his service, within a year of his discharge, or is otherwise related or attributable to his service.  And after reviewing the evidence, the Board finds that service connection must be denied because the preponderance of the evidence is against this posited correlation.  

During his December 2013 Board hearing, the Veteran testified that DDD of his lumbar spine was the result of injury to his back during service from moving equipment and desks.  

As already alluded to, arthritis (so degenerative joint disease (DJD) is a "chronic disease" under 38 C.F.R. § 3.309(a), whereas DDD is not.  Thus, consideration under 38 C.F.R. § 3.303(b) is warranted since the Veteran has diagnoses of both.  However, the evidence does not support a finding that his current back disability is the direct result of his active military service nor did it manifest during the one-year presumptive period post service.  His STRs do show that he complained of back pain and muscle tightness in July 1976.  They also note acute low back strain and mid back pain from pushing a desk in September 1984.  Resolving back strain was again noted in June 1989.  He complained of mid-thoracic spine pain in July 1991 due to lifting a bag.  He was diagnosed with a thoracic strain.  

To the extent the Veteran is asserting that he has had continuing or ongoing problems with his back since service, these statements are not found to be credible for the purpose of establishing a continuity of symptomatology since his service.  38 C.F.R. § 3.303(b); Layno, supra.  Notably, there were no further complaints or treatment of the back in service after 1991.  Moreover,  the June 1993 separation examination was unremarkable for indication of a back disorder.  While he reported back pain on his corresponding medical history, there were no objective clinical findings such as a pertinent diagnosis of a back disorder on the aforementioned physical examination and such a disability did not manifest until many years after his discharge in 1993, so well beyond the one-year presumptive period.  Notably, X-rays showed degenerative changes of the thoracic spine in August 2008 and multi-level DDD in March 2010, which is clearly well outside the one-year presumptive period for having initially developed arthritis (because he served until October 1993, the one-year presumptive period expired in October 1994).  38 C.F.R. §§  3.307, 3.309(a).  

Thus, the evidence of record reveals there was a prolonged period (15 years)  following conclusion of the Veteran's service without medical complaint or treatment, and this may be considered as evidence against the claim, albeit cannot be the sole or only basis for denying the claim.  See Maxson, 230 F.3d at 1333; Mense, supra.  Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  

As a back disorder, including arthritis, was not shown during service or for many years thereafter, service connection can only be granted if there is some competent and credible evidence otherwise linking the current disability to service.  See 38 C.F.R. § 3.303(d) (permitting the granting of service connection even when the initial diagnosis was post service).  Here, though, there is no such competent and credible evidence, even after the Veteran was examined by VA in 2014.

Specifically, the examiner opined it was less likely than not that the Veteran's relatively mild multi-level DDD of the lumbar spine and/or degenerative changes of the thoracic spine were incurred in or the result of military service.  The examiner reasoned, based upon medical literature, clinical experience, medical record review, and evaluation of the Veteran, there was no objective evidence of a chronic thoracic or lumbar spine condition during service or even within two years of military service.  The examiner noted that STRs documented acute and transitory soft tissue injuries of the back.  The examiner found that the Veteran's statement that he had "suffered greatly with pain in [his] lower back" since service could not be substantiated by the medical treatment records.  The examiner found it pertinent that the separation examination of the spine was normal and that multiple private treatment records dated between 1995 and 2010, to include specialist and neurosurgical consultation visit notes, were reviewed and included normal thoracolumbar findings.  The treatment records were also silent for a chronic lower back condition.  The examiner concluded that the radiologic findings were most likely related to the aging process and reflected an additional 15 plus years of stress placed on the spine since separation from service.  The examiner determined that a nexus could not be made between acute soft tissue (muscle) injuries during service and the radiologic findings 15 plus years post-military service.   


The Veteran is competent to report such symptoms commonly associated with his back disability, like pain.  But he is incompetent to determine whether such symptoms are a manifestation of a 'chronic disease' such as arthritis owing to his military service.  See Jandreau, supra.  Arthritis is a complex, not simple, condition, so medical evidence, not just lay evidence, is required to establish this association.  

The competent medical evidence of record in this instance does not support a finding that a back disorder, notably DDD of the lumbar spine and degenerative changes of the thoracic spine, is related or attributable to the Veteran's active duty service - either directly or presumptively.  The 'chronic disease' was not present to a degree capable of identifying the disease entity during service.  No symptoms actually related to arthritis have been identified for continuity of symptomatology after the Veteran's discharge from service.  The Board consequently concludes that service connection is not warranted under 38 C.F.R. § 3.303(b).

Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a back disorder, and thus, the benefit-of-the-doubt doctrine does not apply.  As such, the evidence is insufficient to support a grant of service connection.  38 U.S.C.A. § 5107(b) (West 2014); Ortiz, 274 F.3d at 1364, 1365.

(iii) Bilateral Foot Condition

The Veteran was diagnosed with mild dystrophic toenails on VA examination in 2014.  The question is whether this disability incepted during his service or is otherwise related or attributable to his service.  And after reviewing the evidence, the Board finds that service connection must be denied because the preponderance of the evidence is against this posited correlation.  

During his December 2013 Board hearing, the Veteran testified that he had first sought treatment for ingrown toenails during service.  In an April 2010 statement, he indicated that he currently had pain from ingrown toenails.

The Veteran's STRs show he was treated for infected and ingrown toenails in May 1976.  The culture revealed staphylococcal epidermidis.  To the extent he is asserting that he has had continuing or ongoing problems with his feet, particularly toenails, since service, these statements are not found to be credible for the purpose of establishing a continuity of symptomatology since his service.  38 C.F.R. § 3.303(b); Layno, supra.  Notably, there were no further complaints or treatment of the toenails in service after 1976.  Moreover, both the June 1993 separation reports of medical history and examination are unremarkable for indication of a bilateral foot/toenail disorder.  There were no subjective complaints (he denied foot trouble) or objective clinical finding such as a pertinent diagnosis of a foot disorder.  Also, to reiterate, realize that this notion of showing continuity of symptomatology since service only applies to the disorders specifically defined as "chronic" according to 38 C.F.R. § 3.309(a), and ingrown toenails is not such a condition.  See Walker, supra. 

The Veteran's service ended in October 1993, and the first post-service documented finding referable to his feet was in August 2000 (onychomycosis), so not until some 7 years later.  In an April 2010 statement, he asserted that he had pain from current ingrown toenails.  There was a prolonged period following conclusion of his service (7 years) without relevant medical complaint or treatment, and this may be considered as evidence against the claim, albeit cannot be the sole or only basis for denying the claim.  See Maxson, 230 F.3d at 1333; see also Mense, supra.   

As a chronic (meaning permanent) bilateral foot/toenail disorder was not shown during service or for many years thereafter, service connection only may be granted if there is some competent and credible evidence otherwise linking or attributing the current disability owing to this condition to the Veteran's service.  See 38 C.F.R. § 3.303(d).  Here, though, there is no such competent and credible evidence, even after he was examined by VA in 2014.


After reviewing the claims file (including the STRs) and physically examining the Veteran, the July 2014 VA examiner opined mildly dystrophic toenails (ingrown not shown on current exam) were less likely than not incurred in or the result of military service.  The examiner reasoned that STRS were unremarkable for any toenail condition on separation examination in 1993.  The examiner also found it noteworthy that private medical records dated since 1995 were equally unremarkable for any chronic toenail condition other than onychomycosis written in 2000.  The examiner considered it significant that there were no exam findings, scraping, culture, or discussion of the condition found at that time or any listed treatment.  Per medical literature, nail dystrophies, often clinically indistinguishable from onychomycosis, could occur with many conditions (e.g., psoriasis, eczematous conditions, senile ischemia, lichen planus, iron deficiency, and trauma).  But most studies found that onychomycosis was responsible for only 50 to 60 percent of abnormal appearing nails.  So the examiner disassociated any current disability from the Veteran's service.  See Watson, 4 Vet. App. at 314.

The Board realizes the Veteran is competent to report symptoms of pain in his feet, particularly his toenails.  But he is incompetent to determine whether these symptoms are a manifestation of a disability or disease owing to his military service.  See Jandreau, supra.  Medical evidence, not just lay evidence, is required to establish this association.  

A chronic (meaning permanent) bilateral foot/toenail disorder was not diagnosed during service or for many years thereafter.  No symptoms actually related to the feet have been identified in the medical record for continuity of symptomatology after the Veteran's discharge from service, even if this type of condition being claimed was subject to this relaxed evidentiary pleading, which, as explained, according to the holding in Walker, it is not.  The competent and credible medical evidence of record does not support finding that a bilateral foot disorder is related or attributable to the Veteran's active duty service.  


Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral foot condition and thus, the benefit-of-the-doubt doctrine does not apply.  As such, the evidence is insufficient to support a grant of service connection.  38 U.S.C.A. § 5107(b) (West 2014); Ortiz , 274 F.3d at 1364, 1365.

(iv) Lung Disorder

The Veteran has been diagnosed with chronic obstructive pulmonary disease (COPD), emphysema, and reactive airways.  See July 2014 VA examination.  The question is whether this disability incepted during his service or is otherwise related or attributable to his service.  And after reviewing the evidence, the Board finds that service connection must be denied because the preponderance of the evidence is against this posited correlation.  

During his December 2013 Board hearing, the Veteran testified that his lung disorder is the result of continuously inhaling gases, fumes, and chemicals while performing welding duties in service.  He further testified that, as a result of the exposure, he developed bronchitis and pneumonia, which caused scar tissue to develop in his lungs.  He maintained that he had suffered from yearly bouts of pneumonia and bronchitis since his discharge from service.

At the outset, the Board notes that, when the Veteran originally filed his claim in 2010, he indicated that scar tissue from his lungs was caused from asbestos fibers.  The Veteran then clarified that his lung condition, instead, was the result of inhalation exposure from welding gases and fumes.  He does not maintain, nor does the evidence support, a finding of asbestos-exposure-related disease, i.e. the most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis).  Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract.  None of these diseases are shown here, and the following discussion therefore will address other theories of causation the Veteran has alleged.  

In support of his appeal, the Veteran submitted an April 2010 statement listing the specific fumes he was exposed to during his military service, including Aluminum, Beryllium, Cadmium Oxides, Chromium, Copper, Fluorides, Iron Oxide, Lead, Manganese, Molybdenum, Nichel, Vanadium, and Zinc Oxide.  He indicated that some of the some specific gases he was exposed to were Hydrogen Fluoride, Carbon Monoxide, Nitrogen Oxide, Ozone, Aldehydes, Phosgene, Phosphine, Acetylene, and Argon.  He also summited a statement from his wife indicating that he was bedridden with pneumonia and bronchitis yearly, sometimes twice yearly.  She stated that he suffered from shortness of breath and had been diagnosed with COPD.  She further stated that he was a welder in service, exposing him to gases and fumes, which caused his COPD and lung scarring.  

The Veteran's STRs show he was treated for upper respiratory infections (URIs) on numerous occasions, including in October 1973, January 1974 (bronchitis or early pneumonia as well), June 1974, August 1976, January 1977, March 1978, and December 1978.  He was treated for strep pharynx in February 1975 and pharyngitis in January 1976.  Chest X-rays were normal in January 1974, January 1978, October 1979, and March 1980.  In March 1980, the provider noted a history of shortness of breath, chronic cough, sore throat, and increased frequency of colds.  The provider also noted a history of smoking 20 cigarettes a day.  In December 1980 he was diagnosed with viral syndrome.  In January 1983 he was discovered to have resolving pneumonia.  A February 1983 chest x-ray showed old calcified granulomatous changes in both hilar areas.  In January 1984 he was treated for pneumonia.  In April 1985 he was diagnosed with bronchitis and bronchopneumonia.  Pulmonary function tests (PFTs) showed mild restrictive airways.  In December 1986 records show a diagnosis of rule out pneumonia.  He had pharyngitis and questionable bronchitis in January 1989.

To the extent the Veteran is asserting that he has had continuing or ongoing problems with his lungs since service, these statements are not found to be credible for the purpose of establishing a continuity of symptomatology since his service.  38 C.F.R. § 3.303(b); Layno, supra.  Notably, there were no further complaints or treatment after 1989.  Moreover, he denied shortness of breath, pain or pressure in his chest, or chronic cough in the June 1993 separation report of medical history.  He did complain of chronic or frequent colds.  The examiner noted frequent colds since 1981.  There was no objective clinical finding such as a pertinent diagnosis of a lung disorder on the corresponding physical examination.  Chest X-rays were negative and the lungs and chest were evaluated as normal.  Also realize that this notion of showing continuity of symptomatology since service only applies to the disorders specifically defined as "chronic" according to 38 C.F.R. § 3.309(a), and COPD/emphysema is not such a condition.  See Walker, supra. 

The Veteran's service ended in October 1993, and the first post-service documented findings of early pneumonia was in December 2007, so not until some 14 years later.  Recent pneumonia was noted on computerized tomography (CT) scan of his chest in January 2008; however, no major abnormality was seen and no acute lung lesion.  There was some emphysematous blebs at both apices and some discrete scarring in the left mizone and base, but there was no evidence of pneumonia.  Mild COPD was first noted in March 2010.  

There was a prolonged period following conclusion of his service (14 years) without relevant medical complaint or treatment, and this may be considered as evidence against the claim, albeit cannot be the sole or only basis for denying the claim.  See Maxson, 230 F.3d at 1333; see also Mense, supra.   As a chronic (meaning permanent) lung disorder was not shown during service or for many years thereafter, service connection may only be granted if there is some competent and credible evidence otherwise linking or attributing the current disability owing to this condition to the Veteran's service.  See 38 C.F.R. § 3.303(d).  Here, though, there is no such competent and credible evidence, even after the Veteran was examined by VA in 2010 and 2014.

The May 2010 VA examiner diagnosed the Veteran with tobacco product use with reactive airway disease.  The examiner indicated the PFT abnormalities and respiratory symptoms were less likely than not caused by active duty or active duty exposure.  The examiner reasoned that there was no objective evidence of obstructive or intrinsic restrictive ventilatory dysfunction on PFT.  

The Veteran was diagnosed with radiographic findings suggestive of COPD and emphysema with reactive airways per PFT on VA examination in July 2014.  After review of the record (including STRs) and physical evaluation of the Veteran, the examiner opined COPD and emphysema with reactive airways was less likely than not incurred in or otherwise the result of military service.  The examiner reasoned that STRS document intermittent acute and transitory respiratory infections, but did not show a clinical diagnosis and/or treatment for COPD, emphysema, or asthma.  The examiner further found that chronic lung or respiratory disorder was not supported by the record either in service or within the two years following his discharge.  

The examiner acknowledged the Veteran's exposure to welding gases and fumes during his active service.  The examiner reviewed the "Welder's Guide to the Hazards of Gases and Fumes" from "Workplace Health and Safety Bulletin WORKSAFE ALBERTA, Chemical Hazards" submitted by the Veteran and noted that the guide stated that the effects of inhaled fumes associated with welding were "not permanent unless tobacco smoke or other substances...have already affected your lungs."  The examiner also acknowledged the Veteran's 40 pack-year history of smoking (STRs showed 1 pack per day) and his reports of starting smoking as a child and up until six months prior to examination.  However, the examiner noted that PFTs in April 1989, during service, were normal with no respiratory obstruction even four years after cessation of welding.  The examiner indicated that the Veteran continued to smoke cigarettes for more than 28 years after his last potential exposure to welding fumes and gases during active duty.  The examiner found it noteworthy that the Veteran also had heavy alcohol use and rehabilitation documented during service, which was a well-established cause for pneumonia and a risk factors for other infections.  

The examiner concluded that any current lung and respiratory condition was most likely due to nonservice-connected issues, including the Veteran's genetic predisposition and long-standing cigarette smoking, rather than the result of his military service, including especially any potential service-related exposures.  

The examiner further reasoned that review of medical literature showed that the exact threshold for the duration and intensity of cigarette smoking that will result in COPD varied from one individual to another.  However, the single best variable for predicting which adults will have airflow obstruction on spirometry was a history of more than 40 pack years of smoking.  The examiner observed that numerous epidemiologic studies indicate that cigarette smoking was overwhelmingly the most important risk factor for COPD.  So the 2014 examiner disassociated any current lung disability from the Veteran's service, including exposure to welding gases and fumes.  See Watson, 4 Vet. App. at 314.

Based on this opinion of this VA examiner, the Board finds that the evidence is against granting service connection for a lung disorder.  Precedent opinions of VA's General Counsel have discussed the cause-and-effect correlation between chronic smoking and the eventual development of respiratory disorders such as COPD.  See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997).  And indeed, as here, for claims filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking.  38 U.S.C.A. § 1103; 38 C.F.R. § 3.300.  Therefore, even if the Veteran smoked during service, he may not be granted service connection for COPD or emphysema with restrictive airways, as the VA examiner has determined it is due to the chronic smoking and has not otherwise associated it with the Veteran's military service.  Further, there is no other competent and credible medical opinion refuting this conclusion or otherwise relating the Veteran's respiratory disorder to his service.  See Watson, 4 Vet. App. at 314 .

Aside from his extension history of chronic smoking, the Veteran also has a history of heavy alcohol use or even abuse with consequent efforts at rehabilitation.  This, too, is significant because Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits, effective for claims filed after October 31, 1990 [as in this case] payment of compensation for disability that is a result of a Veteran's alcohol or drug abuse.  Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or a disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's willful misconduct, including abuse of alcohol or drugs.  See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d).

There is just a very limited exception to this general rule.  The Federal Circuit Court has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability.  See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).  But the Federal Circuit Court indicated that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."  Id., at 1381.  The Federal Circuit Court further held that such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing."  Id.

To summarize, where drug and alcohol abuse is at issue, service connection is precluded "in two situations: (1) for primary alcohol abuse disabilities; and (2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse."  Allen, at 1376.  Service connection is not precluded if substance abuse is secondary to a service-connected disability, such as if the Veteran used alcohol and/or drugs to mask or self-medicate his mental disorder, such as posttraumatic stress disorder (PTSD).  Even if a Veteran has a service-connected disability, however, service connection would be precluded for the alcohol or drug abuse disability if it is actually due to willful action rather than the result of the service-connected disability.  Id., at 1378.

Here, by all accounts, the Veteran's prior use and possible abuse of alcohol did not stem from efforts to deal or cope with a mental disorder, so is a primary rather than secondary disorder.  Consequently, compensation is precluded for any consequent disability as a matter of law, just as it is for his history of chronic smoking.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

The Board realizes the Veteran is competent to report such symptoms as shortness of breath, cough, pain and pressure in the chest, and symptoms commonly associated with colds.  His wife is also competent to report observing such symptoms affecting him.  But both are incompetent to determine whether these symptoms are a manifestation of a disability or disease owing to his military service.  See Jandreau, supra.  Medical evidence, not just lay evidence, is required to establish this association.  

A chronic (meaning permanent) lung disorder was not diagnosed during service or for many years thereafter.  No symptoms actually related to the lungs have been identified in the medical record for continuity of symptomatology after the Veteran's discharge from service, even if this type of condition being claimed was subject to this relaxed evidentiary pleading, which, as explained, according to the holding in Walker, it is not.  The competent and credible medical evidence of record does not support finding that a lung disorder is related or attributable to the Veteran's active duty service.  

Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a lung disorder and thus, the benefit-of-the-doubt doctrine does not apply.  As such, the evidence is insufficient to support a grant of service connection.  38 U.S.C.A. § 5107(b) (West 2014); Ortiz, 274 F.3d at 1364, 1365.

Increased (Compensable) Rating Claim for Left Knee Arthritis

The Veteran is appealing the original assignment of the 0 percent, so noncompensable, evaluation following the granting of service connection for left knee arthritis.  See August 2008 rating decision.  As such, the severity of the disability is to be considered during the entire period since the filing of the claim, and if there have been variances in the severity the Board must "stage" the rating to compensate him for the change in status of this disability.  See Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  All reasonable doubt regarding the degree of disability is resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for that higher rating; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.

When considering functional impairment caused by a service-connected disability, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see also Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment owing to a mental disorder).

The Court has held that VA adjudicators must analyze the evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath, 1 Vet. App. at 592.  
Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  Indeed, when § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011).  Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance.  Id., at 37.  In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss.  Id., at 36.  In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (so noncompensable) under the applicable DC.  The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion.  Moreover, where the DC is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply.  Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85.

Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).

Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 ("other" impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum).  

These several Diagnostic Codes provide the following ratings for the following levels of impairment:

A 60 percent evaluation may be assigned for extremely unfavorable ankylosis of a knee in flexion at an angle of 45 degrees or more.  A 50 percent evaluation may be assigned for ankylosis of a knee between 20 degrees and 45 degrees.  A 40 percent evaluation may be assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees.  A 30 percent evaluation may be assigned for ankylosis of a knee at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees.  38 C.F.R. § 4.71a; Diagnostic Code 5256.

For other knee impairment, recurrent subluxation or lateral instability of the knee, a severe case is to be rated 30 percent disabling; a moderate case is to be rated 20 percent disabling.  For a slight case a 10 percent rating is appropriate.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

A 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258.

The only rating under DC 5259 is 10 percent.

Limitation of flexion of the leg to 60 degrees warrants a 0 percent rating.  When flexion is limited to 45 degrees, a 10 percent rating is assigned.  A 20 percent rating is appropriate where flexion is limited to 30 degrees.  A 30 percent rating is appropriate where flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  

Limitation of extension of the leg to 5 degrees warrants a 0 percent rating.  When extension is limited to 10 degrees, a 10 percent rating is assigned.  A 20 percent rating is appropriate where extension is limited to 15 degrees.  A 30 percent rating is appropriate where extension is limited to 20 degrees.  A 40 percent 

rating is appropriate where extension is limited to 30 degrees.  A 50 percent rating is appropriate where extension is limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Impairment of a tibia and fibula with slight knee or ankle disability may be assigned a 10 percent evaluation.  Impairment of a tibia and fibula with moderate knee or ankle disability may be assigned a 20 percent evaluation; impairment of a tibia and fibula with marked knee or ankle disability may be assigned a 30 percent evaluation and nonunion with loose motion requiring a brace or malunion may be assigned a 40 percent evaluation.  38 C.F.R. § 4.71a; Diagnostic Code 5262.

As a point of comparison, according to VA standards, normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion.  See 38 C.F.R. § 4.71, Plate II (2015).

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  VA's Office of General Counsel has explained that compensating a claimant for separate functional impairment under Diagnostic Code 5257 ("other" impairment, including recurrent subluxation and lateral instability) and 5003 (degenerative arthritis) does not constitute impermissible pyramiding.  VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997).  In order for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable, but must at least meet the criteria for a 
zero-percent rating.  VAOPGCPREC 9-98 (August 14, 1998).  VA's General Counsel further explained however that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, a separate rating for arthritis also could be based on X-ray findings and painful motion under 38 C.F.R. § 4.59.  This is because, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

VA's Office of General Counsel additionally has determined that separate disability ratings may be assigned for limitation of knee flexion (Diagnostic Code 5260) and of knee extension (Diagnostic Code 5261) without violation of the rule against pyramiding at 38 C.F.R. § 4.14, regardless of whether the limited motions are from the same or different causes.  VAOPGCPREC 9-04 (September 17, 2004).

Going back to if the knee condition involves arthritis, it may be rated under provisions for evaluating arthritis.  Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003.  Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved - which, here, as explained, or DC 5260 for limitation of leg/knee flexion and DC 5261 for limitation of leg/knee extension.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, the disability is to be rated as follows:  with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  


The Veteran's service-connected left knee arthritis has been assigned a noncompensable rating under Diagnostic Code 5260 (limitation of flexion).  In order to afford him the broadest scope of review, and to ensure that each separate disability involving the knee is evaluated properly, the Board shall consider the service-connected symptomatology involving the knee under each and every applicable DC providing rating criteria for evaluating knee disabilities. 

The pertinent facts found in the medical evidence of record are discussed below.  Having carefully considered the Veteran's claim in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that the left knee disability does warrant an initial compensable rating of 10 percent since there is arthritis, even though the Veteran does not have sufficient limitation of motion on flexion or extension to otherwise warrant assignment of this minimum compensable rating.  38 C.F.R. § 4.71a, DC 5003.  See also 38 C.F.R. §§ 4.3, 4.7.  There is no basis for assigning an even greater rating, however.

In rating the Veteran's knee disability, the Board notes that under Diagnostic Codes 5003 and 5010, traumatic/degenerative arthritis established by X-ray findings is rated according to limitation of motion for the joint or joints involved.  There has been radiographic evidence of arthritis of the knee.  The criteria for rating extension and flexion of the knee are found at Diagnostic Codes 5260 and 5261, and detailed above.  Here, review of the evidence shows that flexion has been at worse limited to 130 degrees upon VA examination in May 2010.  On VA examination in July 2014 flexion was full to 140 degrees.  This does not meet the criteria established for a compensable rating  under Diagnostic Code 5260.  Extension was full upon VA examinations in 2010 and 2014, which does not even meet the criteria established for a noncompensable rating under Diagnostic Code 5261.  38 C.F.R. § 4.71a.  


The Board however is mindful of the Veteran's complaints of dull constant pain that is always present in this knee (2010 examination report), and thus, is additionally considering functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).  There was no objective evidence of painful motion on range-of-motion testing, including repetitive testing, during either the 2010 or 2014 examination.  The Veteran did not have any additional loss of limitation of motion during repetitive testing on VA examination in 2010 or 2014.  There was no objective evidence of fatigability, incoordination, or weakness of the knee.  He also does not have sufficient limitation of flexion or extension to meet the criteria for even the most minimum noncompensable rating under DCs 5260 and 5261.  But the mere fact that he has objective, i.e., X-ray, confirmation of arthritis in this knee is sufficient reason, alone, to assign the minimum compensable rating of 10 percent under DC 5003.  See also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  But as explained in Mitchell, this does not provide grounds for any greater rating.

Turning next to disability due to instability, despite testimony that his knee locks and gives way, the Board finds that the medical records are devoid of objective findings of instability of  the left knee at any time throughout the appeal period.  See VA examinations dated in 2010 and 2014.  Accordingly, there is no basis for providing a separate rating for left instability at any time throughout the appeal period.

The Board also has considered other potentially applicable diagnostic codes that provide for the assignment of even higher evaluations for the Veteran's left knee disability.  After review, however, the Board observes that no other code provisions can be applied for a higher rating based on the evidence of record.  There was no evidence of ankylosis of the knee (Diagnostic Code 5256), dislocated or removal of symptomatic semilunar cartilage (Diagnostic Codes 5258, 5259) or impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263).  38 C.F.R. § 4.71a.


Speaking of ankylosis, it is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  The Veteran, at most, has very minimal limitation of motion, and only primarily on flexion, so his left knee clearly is not ankylosed, which is commensurate with no motion at all.

The Veteran's left knee disability also has been at most 10-percent disabled owing to the arthritis since the filing of the claim, so the Board cannot "stage" the rating under Fenderson.

The Court has held that, when evidence of unemployability is presented, the issue of whether a total compensation rating based on individual unemployability (TDIU) will be assigned, should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected.  See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009) and Mayhue v. Shinseki, 24 Vet. App. 273 (2011).  In Rice, the Court determined that there is no freestanding claim for a TDIU.  Id. at 451.  

Here, though, the Veteran has not raised the issue of entitlement to a TDIU with respect to his left knee claim.  See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  The evidence of record shows that, while the 2014 VA examiner indicated that strenuous physical activity would place stress on the Veteran's knees and likely aggravate his symptoms, he has not claimed that the knee disability (only his left knee is service connected) renders him unemployable.  On VA examination in 2010, the VA examiner found that there were no employment limitations caused by the left knee.  As the Veteran has not raised such a claim and there is no objective evidence of unemployability due to the service-connected left knee disability, a derivative claim for a TDIU is not presented.

The above determinations are based upon application of the pertinent provisions of VA's rating schedule.  The Board finds that the record does not reflect that the Veteran's service-connected left knee disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra- schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2015).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).

In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). 

In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected left knee disability reasonably describes his disability level and symptomatology.  The criteria allow for ratings based on limitation of motion and functional loss (due to such symptoms as pain).  Even considering the Veteran's subjective complaints of dull constant pain, he did not even meet the criteria for a compensable rating for limitation of flexion and there was no evidence of limitation of extension.  There was no change in range of motion even after repetitive testing of the knee.  There was no satisfactory evidence of painful motion.  There was no objective evidence of left knee instability throughout the appeal period.  Therefore, 

the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required.  38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 
9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).


ORDER

Entitlement to service connection for a right knee disorder, including as secondary to a service-connected disability, is denied. 

Entitlement to service connection for residuals of a low back injury (also claimed as (IVDS, DDD, and muscle damage) is denied.

Entitlement to service connection for a bilateral foot condition is denied.

Entitlement to service connection for a lung disorder (also claimed as bronchitis, emphysema, and scarring of the lungs) is denied.

A higher 10 percent initial rating is granted for the left knee disability, however, subject to the statutes and regulations governing the payment of VA compensation.


REMAND

In the prior May 2014 remand, the Board determined the Veteran filed a timely NOD contesting the 30 percent rating assigned following a grant of service connection for migraine headaches in the March 2012 rating decision.  The Board found the RO had not issued an SOC for the increased initial rating claim and remanded the claim.  See Manlincon v. West, 12 Vet. App. 238 (1999).

To date an SOC has not been issued.  As there was not the acceptable substantial compliance with the remand directives, the Board is once again remanding this claim to the AOJ.  See Stegall, 11 Vet. App. at 270.

Accordingly, the case is REMANDED for the following action:

 Provide the Veteran and his representative an SOC in response to the May 2012 NOD concerning the initial 30 percent rating assigned for the migraine headaches. He also must be advised that, for the Board to have jurisdiction to adjudicate this additional claim, he still needs to file a timely substantive appeal (VA Form 9 or equivalent statement) in response to the SOC.  Should he submit a timely substantive appeal, this claim also should be returned to the Board for further appellate consideration.

The Veteran 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 2014).


______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs