Citation Nr: 1620422 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 14-02 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. 4. Entitlement to service connection for prostate cancer. 5. Entitlement to service connection for hypertension, to include as secondary to coronary (heart) disease. 6. Entitlement to service connection for a disability manifested by bone and/or limb pain of the body (to include ankles, knees, wrists, shoulder, elbows, and back). 7. Entitlement to an increased rating for right knee chondromalacia patella, currently rated as 10 percent disabling. 8. Entitlement to an increased rating for left knee chondromalacia patella, currently rated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from September 1973 to August 1975. These matters come before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. In February 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, and entitlement to service connection for bilateral upper peripheral neuropathy, bilateral lower peripheral neuropathy, prostate cancer, hypertension, and a disability manifested by bone and/or limb pain of the body, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. During the rating period on appeal, the Veteran's right knee disability has been manifested by complaints of pain and giving out; objectively, he has had flexion to at least 120 degrees, full extension, no subluxation, no instability, no impairment of the tibia and fibula, no genu recurvatum, no removal of semilunar cartilage, and no dislocated cartilage. 2. During the rating period on appeal, the Veteran's left knee disability has been manifested by complaints of pain and giving out; objectively, he has had flexion to at least 125 degrees, full extension, no subluxation, no instability, no impairment of the tibia and fibula, no genu recurvatum, no removal of semilunar cartilage, and no dislocated cartilage. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee chondromalacia patella have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.71a Diagnostic Codes 5256-5263 (2015). 2. The criteria for a rating in excess of 10 percent for right knee chondromalacia patella have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.71a Diagnostic Codes 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in December 2011. VA has a duty to assist the Veteran in the development of the claims. The claims file includes medical records and the statements of the Veteran in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. Examinations were obtained in 2012, 2014, and 2015. The Board finds that the examinations were adequate as the reports include clinical examination findings, diagnostic testing, and the Veteran's reported symptoms. The reports provide findings relevant to the criteria for rating the disabilities at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran's testimony at the Board hearing that his knees had recently given out; however the Board finds that this is not a credible indication of a worsening of his knee disabilities such that another VA examination is warranted. The Veteran testified at the hearing that he had previously informed the VA examiner(s) that his knees give out; thus, his assertion that they have continued to give out, is not an increase in disability. Moreover, the Veteran's claims have now been pending for more than four years and have included three examinations, which provide the Board adequate evidence upon which to make a determination. The evidence does not reflect that the Veteran is in receipt of Social Security Administration (SSA) benefits. In the remand below, the Board, which is remanding several issues for verification of alleged herbicide exposure, also requests that VA attempt to obtain SSA records, if any. However, the Board finds that it may adjudicate the rating issues on appeal without the need for any such records. The Veteran has not asserted that he is in receipt of SSA benefits, in whole or in part, for his knees. Moreover, the claims file includes clinical records for the rating period on appeal, as well as VA examinations in 2012, 2014, and 2015. The Board is mindful of the decision in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), in which the court noted that the government need not obtain records in every case in order to rule out their relevance and stated that such decision would be akin to a determination that all medical records must be obtained. Id. at 1323. Similarly, it is not the case that a record's relevance can always be determined without reviewing the record itself. "The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records." Id. Based on a review of the claims file, the Board finds that it need not obtain SSA records to adjudicate the rating issues on appeal. In this regard, the Board also notes that not only are the clinical records against a finding that the knee disabilities would cause unemployment, but a September 1986 Vocational Evaluation Report reflects that the Veteran was unemployed and had a history of alcohol use, and coronary by-pass surgery which has caused him some difficulty in finding employment, to include the Veteran's report that his heart disability prevented him from lifting more than 50 pounds. In addition, the Veteran reported that working in extreme heat and extreme cold affects his breathing. The report is negative for an indication that his knees were the cause, in whole or in part, for unemployment. Thus, the evidence does not indicate that SSA records, if any, would provide pertinent evidence with regard to rating the Veteran's knee disabilities. At the 2016 Board hearing, the record was held open for an additional 60 days, or until April 22, 2016, to allow the Veteran to submit additional evidence. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claims on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran is in receipt of service connection for chondromalacia patella of the right knee, evaluated as 10 percent disabling, and chondromalacia patella of left knee, evaluated as 10 percent disabling, effective from 1999. His disabilities are rated under DC 5014-5260. In September 2011, the Veteran filed a claim for increases for both knees. In a VA Form 21-4138, he stated that "since the initial rating, the medication amount and strength has increased the condition has become worse." A January 2011 VA record reflects that the Veteran had complaints of knee pain for which he uses Tylenol and analgesic cream. A May 2011 VA record reflects that the Veteran reported that his knees hurt at approximately a 6 out of 10. An October 2011 VA clinical record reflects that the Veteran reported knee pain of approximately a 7 out of 10. A January 2012 VA examination report reflects that the Veteran reported flare-ups of once a week with overuse. For the right knee, upon examination, the Veteran had flexion to 120 degrees with pain throughout the range of motion. He had full extension with no objective evidence of painful motion. For the left knee, he had 125 degrees of flexion, with no objective evidence of painful motion. He had full extension with no objective evidence of painful motion. Repetitive use testing did not affect the range of motion. He had tenderness or pain to palpation for joint line or soft tissues bilaterally. He had 4/5 muscle strength. He had no instability on either knee upon all four stability tests. There was no history of recurrent patellar subluxation/dislocation. The Veteran did not have any meniscal conditions, meniscectomy, or symptoms of such. The Veteran used a cane for walking. The Veteran did not have degenerative or traumatic arthritis documented on imaging studies. A June 2013 nuclear medicine bone scan reflects that the Veteran has DJD in most of the joints described (knees, ankles, feet, hands, wrists, shoulders, spine.) A February 2014 VA clinical record reflects that the Veteran reported that he has pain in his knees which he rates as a 6 out of 10. A May 2014 VA examination report reflects that upon examination for both the right knee and left knee, the Veteran had full flexion (140 degrees or greater) with no objective evidence of painful motion. He had full extension with no objective evidence of painful motion. Repetitive use testing did not alter the ranges of motion. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of either knee. He had full muscle strength bilaterally. He had normal stability testing all four tests. There was no history of recurrent patellar subluxation/dislocation. The Veteran did not have any meniscal conditions, meniscectomy, or symptoms of such. The Veteran used a cane and brace(s) for walking. The Veteran did not have degenerative or traumatic arthritis documented on imaging studies. An August 2014 pain management agreement reflects chronic knee pain A September 2014 VA emergency room note reflects that the Veteran complained of left hip pain after stumbling and falling 10 days earlier while fishing. He reported that the pain begins at the lateral hip and radiates down towards the knee. A December 2014 VA surgery note for the Veteran's left hip reflects that he fell in September and fell onto his left hip. It was noted that he walks with antalgic gait. He was noted to have low back pain with referred pain down the buttock to the back of the leg, left lower extremity. An August 2015 VA examination report reflects that the Veteran described mild symptoms of knee pain with weight bearing, and a recent event of his knee giving out. It was noted that he takes tramadol for knee pain and wears a knee brace occasionally. He reported flare ups of burning and swelling pain. He reported that he cannot walk or stand for very long and cannot bend or stoop very easily. Upon examination of the left knee, the Veteran had full range of motion (0 to 140 degrees) with no evidence of pain with weight bearing but with objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. (mild patellofemoral joint pain). There was no objective evidence of crepitus, or additional functional loss after repetitive use. He had full muscle strength bilaterally. He had normal stability testing on all four tests. There was no history of recurrent patellar subluxation/dislocation. The Veteran did not have any meniscal conditions, meniscectomy, or symptoms of such. Although the examiner noted a diagnosis of OA for the left knee, the Veteran also noted that the Veteran did not have degenerative or traumatic arthritis documented on imaging studies. The examiner noted the following: [The Veteran] would not be expected to have any functional loss with repetitive use; however, subjectively [the Veteran] describes occasional flare ups where his knee "swells up." This could represent an inflammatory process such as gout or other mild cartilage condition which could cause difficulty bending the knee in an acute flare. Exact loss of motion is difficult to determine without mere speculation. No further functional loss seen in today's exam from that dated on May, 2014. The Board finds, as is discussed in further detail below, that increased ratings are not warranted for either disability for any period on appeal. Disabilities under DC 5014 are rated based on limitation of motion of the affected parts, as arthritis, degenerative. Under DC 5003, arthritis based on x-ray evidence shall be rated on limitation of motion of the affected joint. The evidence is contradictory as to whether the Veteran has arthritis of the knees. Regardless, he is not entitled to a compensable rating based on limitation of flexion and/or extension, as discussed below. When the limitation of motion is not compensable, a veteran is entitled to a 10 percent rating if he has involvement of 2 or more major joints or two or more minor joint groups. The Veteran is already in receipt of a 10 percent rating for each knee; thus, whether he has involvement of 2 or more joint groups is irrelevant. Under DC 5260, a compensable rating is warranted where the evidence reflects limitation of flexion of the leg to 45 degrees or less. The above evidence demonstrates that during the rating period on appeal, the Veteran had flexion of the right knee to at least 120 degrees. Therefore, a compensable rating is not warranted under DC 5260. He had flexion of the left knee to at least 125 degrees. Therefore, a compensable rating is not warranted. Under DC 5261, a compensable rating is warranted where there is evidence of limitation of extension to 10 degrees or more. The above evidence demonstrates that during the rating period on appeal the Veteran had extension of both the right knee and left knee to 0 degrees. The Board finds that a compensable disability rating is not warranted under DC 5261. The evidence is against a finding that the Veteran has had ankylosis (fixation) of the right or left knee. Therefore, a rating under DC 5256 is not warranted. The evidence is also against a finding of subluxation or lateral instability. (Subluxation is an incomplete or partial dislocation. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). Thus, subluxation of the knee would be when the patella or kneecap is partially dislocated. Subluxation could also be of the meniscus. The evidence is against a finding that the Veteran has had a dislocated kneecap/ meniscus during the rating period on appeal. Although the Veteran reports giving way and/or instability, the medical examiners consistently agreed that there was no evidence of right or left knee instability. While the Veteran may have a subjective feeling of what he considers to be "giving way" or "instability", instability may be observable on diagnostic testing. Instability has not been reproduced, or even observed, by the VA examiners. The Board finds that the VA examiners' opinions regarding instability are more probative than that of the Veteran due to their medical training and expertise. The Board finds that the preponderance of evidence affirmatively shows that the Veteran does not have instability or subluxation, a rating under DC 5257 is not warranted. The Board acknowledges that the records reflect that the Veteran wears a knee brace occasionally and/or regularly; however, this has not been shown by competent evidence to be due to instability. (The 2015 VA examination report notes it is due to swelling.) The Board has also considered DC 5258 (dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion). Although the precise term of "torn meniscus" does not appear in the diagnostic code, a torn meniscus is analogous to dislocated semilunar cartilage. The evidence is against a finding that the Veteran has had a torn meniscus during the rating period on appeal. Thus, a rating under DC 5258 is not warranted. A rating under DC 5259 is not warranted because the Veteran has not had removal of the semilunar cartilage. The evidence is against a finding of nonunion of the tibia and fibula. Therefore, a rating under DC 5262 is not warranted. The evidence is against a finding of genu recurvatum. Therefore, a rating under DC 5263 is not warranted. In determining, the Veteran's overall functioning, the Board has considered the factors espoused in DeLuca v. Brown, 8 Vet. App. 202 (1995), the Veteran's reported symptoms, to include during flare-ups, the clinical records, and the VA examination reports. The Board has also considered the evidence of pain throughout the range of motion in January 2012 for the right knee. Even considering his complaints of pain, he is still not entitled to a rating in excess of 10 percent. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id at 43; see 38 C.F.R. § 4.40. The Veteran's pain has not been shown by competent credible evidence to cause a limitation of motion or other functional loss which would warrant a higher rating, even with consideration of his temporary reduced muscle strength. The Board finds that the evidence of record, when taken as a whole, is against a finding that the Veteran is entitled to a rating in excess of 10 percent for either knee for any period on appeal. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Other considerations The Veteran's various knee complaints are contemplated by the schedular criteria based on their level of severity. Hence, referral for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Any right or left knee symptom of the Veteran's would be considered under the appropriate Diagnostic Code. Thus, the Board finds that the rating criteria reasonably allow for consideration of the Veteran's symptoms. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple disorders in an exceptional circumstance where the evaluation of the individual entities fails to capture all the service-connected disabilities experienced. The Veteran, for the time period on appeal, is in receipt of service connection for only his right and left knees. All of the pertinent symptoms and manifestations have been evaluated by the appropriate diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, this is not a case involving an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple entities. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The evidence does not indicate that the Veteran may have been unable to maintain substantial gainful employment due to his disabilities. (See VA examination reports.) Thus, the issue of entitlement to TDIU has not been reasonably raised by the record. ORDER Entitlement to an increased rating for right knee chondromalacia patella, currently rated as 10 percent disabling, is denied. Entitlement to an increased rating for left knee chondromalacia patella, currently rated as 10 percent disabling, is denied. REMAND The Veteran has testified that when he separated from service he was "unemployable"; VA records list his occupation as "self-employed." The Board is unsure if the Veteran has been in receipt of Social Security Administration (SSA) disability benefits. If so, records, if any, from SSA may be useful in adjudicating his claims for service connection. Thus, VA should attempt to obtain any such records. Service Connection for bone pain/pain in limb In his August 2011 VA Form 21-4138, the Veteran contended that service connection is warranted for "bone pain which was termed: pain in limb". Pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. The claims file includes a diagnosis of pain in limb; however, this appears to relate to the Veteran's complaints of foot pain and a callous. (See May 2011 VA records.) Moreover, there is no competent credible evidence of record which reflects that the Veteran has a disability which is manifested by all over body/limb pain. Nevertheless, SSA records may provide evidence pertinent to the Veteran's claims. NME- diabetes mellitus Peripheral neuropathy of bilateral upper extremities Peripheral neuropathy of bilateral lower extremities Prostate cancer Hypertension The Veteran contends that his disabilities are due to exposure to Agent Orange in Panama. The Veteran's military personnel records reflect that he had two weeks of service at the USARSO (United States Army South) school for JOTC (Jungle Operations Training Center) in 1975. (See DA Form 2-1, Box 17 Civilian Education and Military Schools.) In addition, the Veteran's DD 214 reflects two weeks of JOTC at the USATC (U.S. Army Training Center). The Veteran separated from service in August 1975. Thus, the evidence indicates that he was in jungle training for two weeks at some time between January 1, 1975 and August 8, 1975 (his separation date). The evidence does not reflect that this training was in Panama, but the Board acknowledges that the Army did maintain jungle training in Panama in the 1970s. As the Veteran was possibly undergoing "jungle" training, it seems contrary that Agent Orange (an herbicide) would have been used to defoliate the jungle. Nonetheless, the Board finds that a remand is warranted for compliance with the procedures outlined in VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C., para 10. The Board acknowledges that the claims file includes VA memoranda dated in December 2011 and December 2013 which reflect a formal finding of a lack of information required to corroborate exposure to Agent Orange based on the Veteran's initial and erroneous claim of service in Panama in 1971 and/or 1972. However, the Veteran was not in service in 1971and 1972. Based on the Veteran's DA Form 2-1, the appropriate time frame is in 1975. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain updated private and VA clinical records. 2. Attempt to obtain SSA records, if any, for the Veteran, to include all medical records. 3. Follow the procedures outlined in VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C., para 10, please make a finding regarding the Veteran's reports of Agent Orange exposure in Panama in 1975 based on the Veteran's military personnel records which reflect that he had two weeks of service at the USARSO (United States Army South) school for JOTC (Jungle Operations Training Center) in 1975. (See DA Form 2-1, Box 17 Civilian Education and Military Schools and DD 214 which reflects two weeks of JOTC at the USATC (U.S. Army Training Center.) The RO should consider and discuss as necessary the article of record from the Global Pesticide Campaigner entitled "Agent Orange Tested in Panama in the 1960's and 70's." 4. If, and only if, the evidence reflects that Veteran had exposure to herbicides (Agent Orange) in service, obtain a clinical opinion as to whether it is as likely as not that he has hypertension, diabetes mellitus, prostate cancer, and peripheral neuropathy of the upper and lower extremities which is causally related to such exposure. 5. Following completion of the above, readjudicate the issues on appeal. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative, if any, an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs