Citation Nr: 1635625 Decision Date: 09/12/16 Archive Date: 09/20/16 DOCKET NO. 07-38 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the right knee, to include as secondary to service-connected degenerative disc disease (DDD) of the lumbosacral spine, with spondylosis and osteoarthritic changes. 2. Entitlement to service connection for degenerative arthritis of the left knee, to include as secondary to service-connected DDD of the lumbosacral spine, with spondylosis and osteoarthritic changes. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In October 2011, April 2012, January 2014, and February 2016 the Board remanded the claims to the RO for additional development. The Board finds that remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand orders require substantial, not strict, compliance). In February 2012, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ), who is no longer available to make the final determination of the Veteran's claims. See 38 C.F.R. § 20.707 (2015). Pursuant to § 20.707, the Veteran was advised in a letter dated in November 2015, of his right to a second Board hearing before another judge and to let VA know whether he wanted a second hearing within thirty days of the date of the letter. The Veteran in December 2015 waived his right to a second hearing and the Chairman has reassigned the matter to the undersigned VLJ. A transcript of the hearing before the prior VLJ is in the record. In December 2015 and April 2016, the Veteran requested to have his claims expedited pursuant to 38 U.S.C.A. § 7107 (West 2014) and 38 C.F.R. §20.900(c) (2015), based on the inability to work and his medical conditions. As the Board is presently issuing a decision, ruling on this motion has become moot. FINDINGS OF FACT 1. Degenerative arthritis of the right knee did not manifest during service or the one year presumptive period and is neither caused nor aggravated by a service connected disease or injury. 2. Degenerative arthritis of the left knee did not manifest in service or the one year presumptive period, was not incurred in or aggravated by active military service, and is neither caused nor aggravated by a service-connected disease or injury. 3. The Veteran is currently service connected for DDD of the lumbosacral spine, depressive disorder not otherwise specified (NOS) associated with DDD of the lumbosacral spine, peripheral neuropathy of the right lower extremity, and sciatica and radiculopathy of the left lower extremity associated with DDD of the lumbosacral spine; his combined rating is currently 70 percent. 4. The evidence is at least evenly balanced as to whether the combined effects of the Veteran's service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for degenerative arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015). 2. The criteria for establishing service connection for degenerative arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for an award of a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The RO's August 2006, June 2006, and January 2014 notice letters advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The Veteran's service treatment records are associated with the claims folder, as well as all VA and private treatment records identified by the Veteran. The Veteran has not identified any additional relevant, outstanding records that need to be obtained before deciding his claim. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2015); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). VA also satisfied its duty obtain a medical opinion when required. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was afforded VA examinations in April 2007, May 2012, April 2014, and March 2016. In addition, several VA medical opinions have been sought in this matter. In October 2011, April 2012, January 2014, and February 2016 the Board remanded these claims to obtain new VA opinions. The March 2016 examination report and opinions are adequate, and therefore the remand orders were fully complied with. See Stegall, 11 Vet. App. at 271. Thus, VA satisfied its duty to obtain a medical opinion in this case. Additionally, the Veteran was afforded the opportunity to give testimony before a VLJ in February 2012. At the hearing, the VLJ identified the issue on appeal and discussed the Veteran's medical history and current complaints. The VLJ sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate his claims. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). II. Service Connection In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Arthritis is one such disease. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2015); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111 , 1137; 38 C.F.R. § 3.304(b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In addition, "the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service." Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). If the presumption of soundness applies, the burden then shifts to "the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner, 370 F.3d at 1096. Accordingly, once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Id. Conversely, the burden is not met by finding "that the record contains insufficient evidence of aggravation." See Id. Finally, "[i]f this burden is met, then the veteran is not entitled to service-connected benefits." Wagner, 370 F.3d at 1096. The Veteran has several theories as to how his current knee disabilities are related to service. Besides direct injuries in service, the Veteran's MOS as a radio specialist required him to frequently carry heavy radio equipment in addition to his normal combat gear when in the field. The Veteran argues that this resulted in wear and tear to his knees, resulting in his current disabilities. The Veteran has alternatively asserted that his knee disabilities are secondary to his service-connected DDD of the thoracolumbar spine disability. He claims that medication prescribed for his back pain can caused weight gain. At the February 2012 hearing, Veteran testified that after injuring his back, he used his knees even more for lifting and that additional physical stress resulted in his current knee disabilities. The Board finds that the Veteran is competent to report his personal history, and the Board also finds him credible to report his symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau, supra. Service treatment records show complaints of pain in both knees. The record references a history of a right femur fracture. His February 1973 induction examination notes a history of a 1964 broken leg that has since healed. The Veteran reported no broken bones or arthritis. A clinical evaluation of the lower extremity was normal. In July 1973, the Veteran complained of right knee pain for the past two days. November 1973 treatment notes show complaints of a reinjury to the right leg with right thigh swelling, but full range of motion. As for the left knee, May 1974 treatment notes show complaints of continuous pain in the front of the left leg. On June 1977 separation examination, a clinical evaluation of the lower extremity was normal. The Board notes that the presumption of soundness attaches to the Veteran's case. However, because, as will be discussed, the evidence shows that a knee disorder is not related to active service, there is no need to engage is the presumption of soundness analysis. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). The Court stated in Gilbert: "The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof." Id. In other words, even if the presumption of soundness is not rebutted, the current knee disabilities and nexus elements of service connection must still be satisfied in order to establish entitlement to service connection benefits. Post-service treatment records show complaints of and treatment for bilateral knee pain. Private medical records dated in January 2003 reflect that the Veteran gave a 6-month history of right knee pain, with no recollection of a specific injury. Impressions of right knee pain, degenerative arthritis and a meniscus tear were made. VA records reflect that the Veteran twisted his left knee in September 2005. The Veteran was afforded multiple VA examinations to determine the nature and etiology of his knee disabilities. On April 2007 examination, the Veteran gave a 30-year history of right knee pain. He reported that he underwent right knee arthroscopic surgery in 2003. X-ray films revealed left knee patellofemoral spurring and degenerative changes, and right knee patellofemoral spurring with medial compartment narrowing and flattening. The examiner diagnosed obesity and bilateral knee degenerative arthritis. The examiner opined that the Veteran's knee disabilities were in no way connected to the back disability. As rationale, the examiner indicated that degenerative processes in the knees had occurred over time due to use and weight and not caused by or the result of the back condition. The Veteran was afforded a VA examination in May 2012. The examiner diagnosed bilateral degenerative joint disease. The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's knee conditions are related to or the result of service, or the service-connected lower back disability. As rationale, the examiner attributed the knee disabilities to age and obesity. On April 2014 VA examination, the examiner also provided a negative nexus opinion to service. As rationale, the examiner stated that most of the Veteran's knee conditions began in 2003 after service, not in 1973. As for aggravation, the examiner stated that the Veteran's service-connected lower back and sciatica disabilities do not aggravate his knee disabilities because there is no relationship between these disabilities to his knees. The Veteran was afforded another VA examination in March 2016. Based on a review of the claims file, including prior VA examinations and lay statements, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's knee conditions are related to or the result of service. As rationale, the examiner stated that was no medical evidence of injury or treatment for a chronic knee condition during service. The examiner acknowledged the 1964 right femur fracture prior to service. The examiner stated that the Veteran's MOS did not have a significant impact on his knees, as supported by the Veteran not complaining of knee pain until 2003. The examiner stated that there is no nexus between the service-connected lower back disability and knee disabilities. As for aggravation, the examiner opined that the Veteran's service did not aggravate his knee conditions because, again, there is no evidence of treatment for a chronic knee condition during service. The examiner attributed the Veteran's knee conditions to aging and morbid obesity, which is not caused by his service-connected back disability. The Board finds that the competent medical evidence demonstrating the absence of nexus between the currently diagnosed knee disabilities and the Veteran's active duty service outweighs any evidence of record that is suggestive of nexus. In particular, the March 2016 VA examiner's opinion was thorough, well-explained, and based on review of the Veteran's medical history, and the interview and physical examination of the Veteran. The Board therefore places significant weight on the findings of the March 2016 VA examiner. See Nieves-Rodriguez, supra; see also Bloom, supra. Based on a review of the evidence, the Board finds that service connection for degenerative arthritis of the right and left knees is not warranted. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of medical nexus. As a lay person, the Veteran is considered competent to report observable symptoms. See Washington, 21 Vet. App. at 195 (holding that, "[a]s a layperson, an appellant is considered competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Barr, supra; Layno, supra. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. The general principle that trauma may lead to chronic orthopedic disability is commonly known and, therefore, the Veteran's claim that he has knee disabilities related to service, or to service-connected disabilities, has some tendency to make a nexus more likely than it would be without such assertions. Once the threshold of competency is met, however, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The above medical opinions, taken together, reflect that the Veteran's current right and left knee disabilities are unrelated to service and were neither caused nor aggravated by service connected lumbosacral spine DDD. The VA examiners explained the reasons for their conclusions that the Veteran's knee disabilities are related to age and obesity rather than service or service connected lumbosacral spine DDD based on an accurate characterization of the evidence of record. These opinions are entitled to significant probative weight and were stated broadly enough to include a lack of aggravation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, there is no indication in the evidence of record that the Veteran had symptoms of arthritis during service or within the one year presumptive period that were early manifestations of the subsequently diagnosed arthritis. To the extent that the Veteran has indicated he had knee pain in and since service, the Board finds the reasoned opinions of the VA examiners that such did not reflect a relationship between the current knee disabilities and service to be of greater probative weight than the Veteran's more general lay assertions. Consequently, and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claims for service connection for degenerative arthritis of the right and left knees. Accordingly, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2015). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a) (2015). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2015). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a) (2015). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For a veteran to prevail on a TDIU claim, it is necessary that the record reflect some factor which takes his case outside the norm of other such veterans. 38 C.F.R. §§ 4.1, 4.15 (2015). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. Therefore, the question now presented is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran claims that physical and psychological symptoms from his service-connected disabilities render him unemployable. In his February 2014 TDIU application, he reported that his disabilities affected him full-time in 2005. He indicated that his back prevents prolonged standing and sitting. The Veteran has been unemployed since 2005. See February 2014 VA Form 21-8940. He previously worked as a construction worker. He has worked solely in the construction industry, and completed 2 years of college. Here, the Veteran satisfies the percentage requirements noted above. He is currently in receipt of VA disability compensation for DDD of the lumbosacral spine evaluated as 40 percent disabling, depressive disorder NOS associated with DDD of the lumbosacral spine evaluated as 30 percent disabling, peripheral neuropathy of the right lower extremity evaluated as 10 percent disabling, and sciatica and radiculopathy of the left lower extremity associated with DDD of the lumbosacral spine evaluated as 10 percent disabling. The Veteran's combined evaluation is currently 70 percent. Thus, he meets the scheduler criteria for an award of TDIU. 38 C.F.R. § 4.16(a). As for evidence on the ability to work, the record contains conflicting opinions on effects of the Veteran's service-connected disabilities. In August 2006 letters, the Veteran's former employers reported that his back condition caused problems at work. In a June 2014 addendum, an examiner opined that the Veteran's depression did not prevent him from working. As rationale, the examiner stated that the Veteran has mild symptoms and would be best suited for work tasks that do not require extended concentration. Similarly, on April 2016 examination, the examiner opined that the Veteran's service connected disabilities allow him to perform sedentary employment. The examiner indicated that the lower back disability in combination with associated sciatica prevent the Veteran from walking, bending, lifting, stooping or standing for an extended period. The examiner noted that the Veteran's non-service connected disabilities were more limiting than his service-connected disabilities. On the contrary, in an April 2015 letter, the Veteran's treating VA physician indicated that the Veteran's multiple comorbidities, including psychological and chronic illnesses, preclude him from employability. Similarly, in a November 2015 letter, the Veteran's treating private physician indicated that the Veteran's chronic medical problems prevent him from employability because of difficulties with ambulation. The competent and credible evidence of record shows that the Veteran is not currently able to engage in substantially gainful employment due to physical and psychological impairments caused by his service-connected disabilities. In this regard, the Board notes the conclusions in April 2015 and November 2015 letters from the Veteran's treating physicians indicating that his condition prevent him from employability. Although the VA examiners reached contrary conclusions, as noted above, statements from the Veteran's treating physicians and the Veteran are at least as probative as the conclusions of the VA examiners. Moreover, the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The above evidence reflects that the significant effects of the Veteran's service-connected disabilities on his ability to work render him unable to secure and follow a substantially gainful occupation in light of his education and limited occupational experience. The evidence is thus at least evenly balanced as to whether the Veterans service-connected disabilities render him unemployable. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for degenerative arthritis of the right knee, to include on a secondary basis, is denied. Entitlement to service connection for degenerative arthritis of the left knee, to include on a secondary basis, is denied. Entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs