Citation Nr: 1756883	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  14-06 261	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1. Entitlement to service connection for bilateral shoulder disability.

2. Entitlement to service connection for bilateral hand disability.

3. Entitlement to service connection for bilateral hip disability.

4. Entitlement to service connection for left ankle disability.

5. Entitlement to service connection for bilateral foot disability.

6. Entitlement to service connection for chronic arthritis.

7. Entitlement to disability ratings higher than 10 percent from February 25, 2010, and 20 percent from October 27, 2016, for right knee disability.

8. Entitlement to an initial disability rating higher than 0 percent for right knee scars.

9. Entitlement to a total disability rating based on individual unemployability (TDIU).


WITNESSES AT HEARING ON APPEAL

The Veteran and J. H.


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from June 1978 to November 1984.

These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In a January 2011 rating decision, the RO denied service connection for chronic arthritis and for disabilities of the shoulders, hands, hips, ankles, and feet. The RO granted service connection, effective February 25, 2010, for right knee disability, and assigned a 10 percent disability rating. In a July 2012 rating decision, the RO granted service connection, effective September 7, 2010, for right knee scars, and assigned a 0 percent rating. 

In May 2016 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record.

In a February 2016 Board decision, the Board found that the record raised the issue of a TDIU. In February 2016 the Board remanded to the Agency of Original Jurisdiction (AOJ), in this case the RO, for additional action, the issues of service connection for chronic arthritis and disabilities of the shoulders, hands, hips, ankles, and feet, the issue of ratings for right knee disability, and the issue of a TDIU.

The Veteran previously had a pending appeal for service connection for hypertension. In a January 2017 rating decision the RO granted service connection for hypertension, resolving that issue. In addition, in the January 2017 rating decision the RO granted service connection for right ankle disability, resolving that issue, and leaving on appeal the issue of service connection for a left ankle disability.

In the January 2017 rating decision, the RO granted an increase to a 20 percent rating, from October 27, 2016, for right knee disability. The remaining appeal regarding the right knee disability is for ratings higher than 10 percent from February 25, 2010, and 20 percent from October 27, 2016.

In December 2013, the Veteran appears to have raised an informal claim for service connection for cervical spine disability. The RO is the AOJ for this claim and has not addressed the claim. The Board does not have jurisdiction over this informal claim. It was raised prior to a 2015 change in the VA procedures for handling informal claims. The Board therefore is referring it to the RO for appropriate action.

The issues of the rating for right knee disability and of a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDINGS OF FACT

1. No chronic or recurrent disorder of either shoulder became manifest during service.

2. Bilateral shoulder arthritis identified long after service is not attributable to events during service.

3. No injury or disorder affecting either hand occurred during service or continued after service.

4. Any post-service fall attributable to knee disabilities did not cause or aggravate any wrist or hand disorder.

5. No chronic or recurrent disorder of either hip became manifest during service.

6. Bilateral hip strain and arthritis identified long after service is not attributable to events during service.

7. Left ankle sprain during service resolved in service.

8. Left ankle pain and stiffness noted from 2010 forward is not related to injury or other events during service.

9. Pes planus noted at entrance to service did not increase in disability during service.

10. Right foot sprain in 1982 resolved in service.

11. Current arthritis in the bilateral great toe joints is not related to injuries or events in service.

12. Chronic, generalized arthritis did not become manifest during service and has not become manifest since separation from service.

13. From September 7, 2010, scars on the right knee, which have a total area not greater than 6 square inches or 39 square centimeters, have not been unstable, have not been painful, and have not impaired function.



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CONCLUSIONS OF LAW

1. Neither arthritis nor other disability of the left or right shoulder was incurred or aggravated in service, nor may be presumed to be service connected. 38 U.S.C. §§ 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

2. Neither arthritis nor other disability of the left or right hand or wrist was incurred or aggravated in service, may be presumed to be service connected, or was proximately due to, the result of, or aggravated by any service-connected disabilities. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).

3. Disability, including arthritis and strain, in the left and right hips was not incurred or aggravated in service, and may not be presumed to be service connected. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.

4. Current left ankle disability was not incurred or aggravated in service, and may not be presumed to be service connected. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.

5. No current disability of either or both feet was incurred or aggravated in service, nor may be presumed to be service connected. 38 U.S.C. §§ 1111, 1112, 1131, 1137, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2017).

6. No chronic, generalized arthritis was incurred or aggravated in service, nor may be presumed to be service connected. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.

7. From September 7, 2010, right knee scars have not met the criteria for a compensable disability rating. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4 including §§ 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). 

In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked.

The RO provided the Veteran notice in letters issued in 2010 through 2016. In those letters, the RO notified him what information was needed to substantiate claims for service connection. The letters also addressed how VA assigns disability ratings and effective dates.

In the May 2015 Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and has not identified any prejudice in the conduct of the hearing. The Board therefore finds that the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in providing further notice during the hearing constitutes harmless error.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the issues that the Board is deciding at this time. The RO substantially fulfilled the instructions in the 2016 Board remand.

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, and the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also 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). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of continuity may be legitimately questioned. 38 C.F.R. § 3.303(b). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has considered the Veteran's own statements and that of his relatives and acquaintances made in support of his claims.  However, they have not demonstrated any specialized knowledge or expertise to indicate they are capable of rendering a competent medical opinion.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the Veteran's joint problems falls outside the realm of common knowledge of a lay person.  See Jandreau  v. Nicholson, 492 F.3d 1372, 1377 n.4  (Fed. Cir. 2007).  His statements show that he had activities during service that were physically jarring and strenuous. As to what immediate and lasting effects followed his service activities, records from during and soon after service are more reliable than recollections made much later, and medical observations and findings carry greater persuasive weight than lay accounts.


Bilateral Shoulder Disability

The Veteran contends that strenuous duties and injuries during service led to bilateral shoulder disability. He asserts that, in particular, parachute jumping and landings, and participating in long road marches while carrying a heavy pack, caused injuries and ongoing problems.

In the report of a December 1977 examination of the Veteran, for entrance into service, no shoulder problems were noted. In the report of a November 1979 examination, the examiner found no shoulder problems. The examiner marked that the Veteran was qualified for airborne training. In an April 1983 medical history, the Veteran denied any history of painful or trick shoulder. In the report of an April 1983 examination, the examiner marked normal for the condition of the Veteran's upper extremities. Records show treatment during service for various issues, but do not reflect complaints involving either shoulder. In October 1984, the Veteran was examined for separation from service. In a history, he marked no for any history of painful or trick shoulder. On the examination report, the examiner marked normal for the condition of his upper extremities.

The Veteran has not identified any medical treatment received soon after his separation from service, nor any within twenty years after separation. His claims file contains records of VA treatment from 2010 forward. In April 2010 he submitted a claim for service connection for several disorders, including shoulder disability. In an August 2010 statement, he wrote that basic training and other service duties were physically demanding.

In VA treatment in March 2011, the Veteran reported constant bilateral knee, toe, and shoulder pain. He stated that the shoulder pain was worse with any movement. 

In August 2012, the Veteran had private examinations of several areas, including his shoulders. He reported that during service he was a paratrooper, and did more than 90 parachute jumps. He stated that shoulder pain began during service and continued through the present. He reported that in both shoulders pain increased with movement and with occupational tasks in manual labor, commercial driving, and carpentry. The examiner found in both shoulders limitation of motion, pain with motion, and radiation of shoulder pain into the wrists. The examiner's assessment was pain, stiffness, and arthritis in both shoulders. 

In VA treatment in December 2013, the Veteran related a one month history of tingling, numbness, and weakness in his left arm. He reported a long history of neck pain radiating into his left shoulder and upper arm. He attributed the long term symptoms to parachute jumping during service. A clinician noted tenderness at and limitation of motion of his left shoulder. Electromyography (EMG) provided evidence of subacute left C5 radiculopathy.

In the May 2015 Board hearing, the Veteran reported that parachute jumping during service caused problems in many parts of his body. He stated that other strenuous activities in service included road marches that averaged 25 miles, performed while carrying a pack that weighed 100 pounds. He related that his service duties were very physically demanding, and that presently he had arthritis throughout his body.

On VA examination in May 2016, the Veteran reported that during service he carried heavy packs on long marches and he did many parachute jumps. He asserted that these activities caused the onset of shoulder problems. He stated that after service he worked in construction. He reported that presently he had shoulder pain with any overhead lifting. He stated that his shoulder problems made him unable to paint, lift drywall, or do any physically demanding task. The examiner reported having reviewed the Veteran's claims file. The examiner found limitation of motion and pain with motion in both shoulders. X-rays showed mild degenerative changes in both shoulders. The examiner concluded that the Veteran had acromioclavicular arthritis in both shoulders. The examiner expressed the opinion that it is less likely than not that injury or other events in service caused the current arthritis in the Veteran's shoulders. The examiner explained that medical records from during service and at separation from service do not show shoulder problems.

In a February 2017 statement, the Veteran again asserted that duties in service including parachute jumping and long marches carrying heavy packs, affected many parts of his body, including both shoulders.

The Veteran has arthritis in both shoulders. There is no evidence regarding the condition of his shoulder during the year following his service, so there is no basis to presume service connection for the current shoulder arthritis.

The report of a November 1979 examination of the Veteran during service noted that he had qualified for airborne training. That information is consistent with his accounts that he did parachute jumping during service. He is in a position to recall activities during service such as long marches while carrying a heavy pack. His statements show that he had activities during service that were physically jarring and strenuous. As to what immediate and lasting effects followed his service activities, records from during and soon after service are more reliable than recollections made much later, and medical observations and findings carry greater persuasive weight than lay accounts.

Records from during the Veteran's service, including at separation from service, do not indicate or suggest that shoulder injuries occurred, or shoulder disorder symptoms became noticeable, while he was in service. The physician who examined him in May 2016 provided an evidence-based explanation of her opinion against a likelihood of a relationship between events in service and the current bilateral shoulder arthritis. As the greater persuasive weight of the evidence is against such a nexus, the Board denies service connection for disability of either shoulder.

Bilateral Hand Disability

The Veteran contends that strenuous duties during service led to bilateral hand disability. In addition, in VA treatment in 2010, he reported that his knee disabilities, which are service-connected, caused him to fall and injure his left wrist.

Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b).

The Veteran's service medical records do not reflect any reports of injuries of or problems involving either of his hands. On VA examination in April 1983, the examiner marked normal for the condition of his upper extremities. In an October 1984 medical history, the Veteran did not relate any history of problems affecting either hand. On the October 1984 separation examination, the examiner marked normal for the condition of his upper extremities.

The Veteran has not reported any treatment for hand problems soon after his service. In VA treatment in April 2010, he reported that bilateral knee problems had recently caused him to fall and sustain injury of his left wrist. He also reported intermittent swelling in his left wrist. A clinician found that x-rays of his left wrist showed no acute fracture or dislocation. The x-rays showed mild degenerative changes, which the clinician described as normal for the Veteran's age. In May 2010, the Veteran submitted a claim for several disabilities including hand disability. In VA treatment in June 2010, a clinician identified a ganglion cyst in the Veteran's left wrist. Treatment of the cyst included aspiration and injection. In November 2010, the Veteran reported pain in both wrists. In March 2011, a clinician noted a small ganglion cyst in the left wrist. 

In a private examination of the Veteran's hands in August 2012, he reported that he is right handed. He related that he had intermittent clawing of both hands and intermittent swelling of his left hand. He stated that during the clawing he had to put his hand on a table to straighten his fingers. He reported that hand pain increased with his work as a commercial vehicle driver. He stated that he was a carpenter by trade, but that he could not sustain a grip on tools. The examiner noted limitation of motion and painful motion in the thumbs and fingers of both hands. Both hands had tenderness to palpation. In the right hand, there was weakness with resisted opposition of the thumb and little finger. There was a raised nodule in the left wrist. The examiner indicated that carpal tunnel syndrome was possible. The examiner found that the Veteran had pain, stiffness, and arthritis in his hands and fingers. 

In VA treatment in December 2013, the Veteran reported pain in his neck and left shoulder, and decreased grip strength in his left hand. A clinician noted diminished sensation in the left hand. Imaging showed degenerative changes in his cervical spine.

As noted above, in the May 2015 Board hearing the Veteran reported that the physical demands of service, including parachute jumping and long marches carrying heavy packs, caused problems in many parts of his body, and that he now had arthritis throughout his body. 

On VA examination in May 2016, the Veteran reported that during service he had strenuous duties and he often strained both hands. He stated that after service he worked in construction for several years. He related that presently both hands had aching that impeded activities. He stated that treating clinicians had recommended hand exercises. The examiner reported having reviewed the Veteran's claims file. On examination, the right and left hands had normal ranges of motion. There was no tenderness and no evidence of pain with motion or use. Both hands had normal grip strength and no muscle atrophy. The examiner found no objective evidence to support a diagnosis of any current hand disorder. The examiner found that the Veteran did not have a current diagnosis associated with either or both of his hands. The examiner expressed the opinion that it is less likely than not that injury or other events in service caused any disorder or disability of either hand. The examiner explained that on the examination there was no evidence of a current hand condition or disability, that there was no record of treatment for any hand problem during service, and that there were no complaints of hand problems on examination at separation from service.

There is no medical finding of disabling arthritis in either or both of the Veteran's hands within a year following his service, so there is no basis to presume service connection for hand arthritis. Clinicians who examined the Veteran in 2012 and 2016 reached different conclusions as to whether he has arthritis or any other disorders affecting either hand. In any case, during service he did not report and clinicians did not find any problems affecting either or both hands. The 2016 examiner's opinion against a connection between service and any current hand disabilities is reasonably persuasive. No clinician has supported a nexus between events in service and current hand disabilities. The greater persuasive weight of the evidence thus is against a connection between duties in service and any current hand disability.

Post-service treatment records reflect ganglion cysts in the Veteran's left wrist. There is no evidence, however, connecting those cysts to his service many years earlier. The Veteran reported in 2010 that his knee disabilities led to a fall and a left wrist injury. As the treating clinician did not find acute wrist injury at that time, the greater persuasive weight of the evidence is against the knee disabilities having caused or worsened a wrist or hand injury or disorder.

Bilateral Hip Disability

The Veteran contends that his strenuous duties during service, including parachute jumping with hard landings, and long marches carrying heavy loads, led to bilateral hip disability. His service medical records do not reflect any hip symptoms or injuries. In September 1984, he received treatment for a basketball injury of the right hamstring, assessed as muscle strain. No symptoms or injuries affecting either hip were found then. In assessment in October 1984 for separation from service, he did not report any hip problems, and the examiner did not find any hip problems.

The Veteran has not reported any treatment for hip problems soon after service. In VA treatment in September 2010, he related occasional pains in his hips. On VA examination in September 2010, he stated that he had having low back pain that radiated to his knees bilaterally. He reported that low back pain began during service, with carrying a backpack and other equipment. In the September 2010 examination the examiner found full muscle strength in both hips. The examiner diagnosed lumbar spine mechanical back syndrome. The examiner expressed the opinion that it is less likely than not that the current back complaints were related to any injury in service.

In a private examination of the Veteran's hips in August 2012, he reported that he had more than 90 parachute jumps during service. He stated that bilateral hip pain began during service and continued through the present. He indicated that presently bilateral hip pain increased with movement and activity such as driving, walking, standing, or climbing. The examiner noted limitation of motion, pain with motion, and decreased muscle strength, in both hips. The examiner found that the hamstring and gluteal muscles were weak bilaterally. The examiner's impression was stiffness and arthritis in both hips.

In VA treatment in December 2013, a clinician noted tenderness at and limitation of motion of the Veteran's left hip.

In the May 2015 Board hearing, the Veteran reported that during service parachute jumping and landing and long marches carrying heavy packs caused problems in many parts of his body, including his hips. He stated that during parachute jumping duties he was in constant pain. He asserted that presently he had arthritis throughout his body. 

On VA examination in May 2016, the Veteran reported that his service was strenuous and included over 90 parachute jumps. He recalled a particularly hard landing on a windy day. He stated that presently he had bilateral hip pain with prolonged weight-bearing or prolonged driving. The examiner reported having reviewed the Veteran's claims file. Examination revealed limitation of motion, pain with motion, and pain with weight-bearing in both hips. The examiner listed a diagnosis of bilateral hip strain. The examiner expressed the opinion that it is less likely than not that injury or other events in the Veteran's service caused the current strain in either or both hips. The examiner explained that his service treatment and separation records do not show any hip injury or problem, and that he had physically demanding work in construction after service.

There is no medical finding of disabling arthritis in either or both of the Veteran's hips within a year following his service. Thus, there is no evidentiary basis to presume service connection for arthritis in his hips. A clinician who examined the Veteran in 2012 found bilateral hip arthritis. During service, however, the Veteran did not report, and clinicians did not find, any problems involving either or both hips. The 2016 examiner's opinion against a connection between the Veteran's activities in service and the current hip disabilities is clearly explained and convincing. That opinion has not been countered by any medical opinion. The greater persuasive weight of the evidence thus is against a connection between duties in service and the current hip disabilities.

Left Ankle Disability

VA has established service connection for disabilities of the Veteran's right ankle and of his left and right knees. He contends that he also has left ankle disability that is related to events, including parachute jump landings, during his service.

In the report of the December 1977 examination of the Veteran for entrance into service, the examiner noted mild pes planus, but did not report any problem involving either or both ankles. During service the Veteran was treated in August 1982 for a twisting injury of the right ankle and foot. Right ankle x-rays showed a small posttraumatic degenerative spur of the distal tibia. He was seen in February and March 1983 for a grade II left ankle sprain. The treatment records contain no indication that x-rays were ordered following that injury. Ten days after the initial left ankle treatment a clinician noted trace edema and a full range of motion. The clinician assessed that the sprain was resolving. On examination in April 1983, the examiner marked normal for the condition of the Veteran's lower extremities. In an October 1984 medical history, the Veteran marked yes for a history of swollen or painful joints. He did not report any history of problems with his left or right ankle specifically. The examiner who performed the October 1984 separation examination marked normal for the condition of his lower extremities.

The Veteran has not reported that he had treatment soon after service for left ankle problems. The assembled post-service medical records are from 2010 forward. In VA treatment in April 2010, he reported knee, foot, and wrist pain. He related a history of jumping from airplanes. A clinician observed that he had normal gait and station. In the Veteran's April 2010 claim, he sought service connection for disabilities in multiple joints, including his ankles. In an August 2010 statement, he wrote that his service involved considerable physical demands, including long road marches and paratrooper duties. 

On VA examination September 2010, the Veteran reported that during service he sustained sprains of both ankles in a long road march. He indicated that problems with both ankles had worsened since service. He related that presently both ankles had pain, instability, stiffness, weakness, incoordination, and swelling. He indicated that presently he worked installing windows and siding, but had lost time from work due to problems with his low back, knees, and ankles.

The examiner observed that he had a normal gait. The left ankle had redness, tenderness, and pain with motion. On x-rays both ankles appeared normal except for a small spur at the distal tibia. The examiner found that there was a history of recurrent sprains and mild degenerative changes in both ankles. The examiner found mild degenerative arthritis in both ankles. The examiner reported having reviewed the Veteran's claims file. The examiner expressed the opinion that it is less likely than not that the current bilateral ankle pain and instability was related to service.

In VA treatment in August 2011, the Veteran reported a two week history of non-pitting edema of his ankles.

In a private examination in August 2012, the Veteran reported that during service he did more than 90 parachute jumps. He indicated that pain in both ankles began during service and continued through the present. He reported having increased pain and stiffness in his ankles in the morning after sleeping. The examiner observed that the Veteran's right foot turned laterally at rest. In the left and right ankles the examiner found swelling, tenderness, limitation of motion, pain on motion, weakened movement, excess fatigability, disturbance of locomotion, and interference with weightbearing.

In the May 2015 Board hearing, the Veteran reported that parachute jumping and landing during service and long marches carrying heavy packs during service caused problems in many parts of his body, including both ankles. He stated that during parachute jumping duties he was in constant pain. He reported that presently he had spurs in his ankles. 

On VA examination in May 2016, the Veteran reported that during service, in basic training, he had ankle swelling that was treated with ice and elevation. He stated that during service he had sprains of both ankles. He reported that he had experienced difficulty with both ankles ever since service. He related that presently he had in both ankles stiffness and pain with weightbearing. He indicated that he had flare-ups with swelling and more severe pain and stiffness. The examiner reported having reviewed the claims file. Examination of the left ankle revealed limitation of motion, pain with motion, pain with weightbearing, and fatigue. The examiner's assessment regarding the left ankle was ankle strain. The examiner expressed the opinion that it is less likely than not that the current left ankle disability was incurred in service or caused by injury or duties during service. The examiner explained that the Veteran had sprains of both ankles during service, but did not report ongoing left ankle problems on examinations later in service. The examiner also noted that postservice records did not contain reports of ongoing left ankle problems.

On VA examination in January 2017, the Veteran reported that he sustained injuries of both ankles during service. He stated that after service, through the present, he experienced progressive pain in his right ankle and intermittent pain in his left ankle. The examiner reported having reviewed the claims file. The examiner noted that x-rays taken in service in August 1982 showed a spur on the right distal tibia. Examination revealed limitation of motion in the right and left ankles. Right ankle x-rays in 2017 showed arthritis. The examiner found traumatic arthritis in the right ankle. The examiner expressed the opinion that it is at least as likely as not that current right ankle arthritis is related to right ankle arthritis shown by x-rays during service.

There is no indication of disabling arthritis in the Veteran's left ankle within a year following his service, so there is no basis to presume service connection for arthritis in his left ankle. The Veteran is in a position to recall physically demanding duties during service. He was treated in service for a left ankle sprain in 1983. Later in service, however, including on examinations later in 1983 and in 1984, there was no mention of ongoing problems affecting the left ankle. Clinicians have not supported a link between left ankle injury in service and left ankle problems seen from 2010 forward. The greater persuasive weight of the evidence is against a connection between the sprain during service and current disability of the left ankle.

Bilateral Foot Disability

The Veteran contends that he has disorders of the feet that began or were worsened during service. He asserts that parachute jump landings and long marches carrying heavy packs damaged his feet. He indicates that pes planus was found when he entered service but that it was not symptomatic at that time.

A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable (obvious or manifest) evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). When there is a preexisting injury or disease, it will be considered to have been aggravated by service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In Horn v. Shinseki, 25 Vet. App. 231, 234 (2012), the Court explained that, when no preexisting condition is noted upon entry into service, the burden falls on VA to rebut the presumption of soundness, which requires both clear and unmistakable evidence that an injury or disease existed before service and clear and unmistakable evidence that an injury or disease was not aggravated by service. The Court went on to state that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness." Horn at 235. In such cases, the Court explained, the burden is on VA to establish by clear and unmistakable evidence that the disability did not increase in severity during service, or to establish by clear and unmistakable evidence that any increase in severity during service was due to the natural progress of the disease. See Horn at 235.

On examination of the Veteran in December 1977 for entrance into service, the examiner found that he had mild pes planus. In a medical history completed in November 1979, the Veteran reported no history of foot trouble. On examination at that time the examiner marked normal for the condition of his feet. In August 1982, the Veteran had treatment after twisting his right foot and ankle while playing basketball. A clinician noted swelling and limitation of motion of the forefoot and ankle, and reported an impression of grade II sprain of the forefoot and ankle. Records of treatment in March 1983 for a twisting injury of the left ankle are silent for complaints involving the left foot. In a medical history completed in April 1983, the Veteran reported no history of foot trouble. On examination in April 1983 the examiner marked normal for the condition of his feet. In a medical history completed in October 1984 for separation from service, the Veteran marked yes for a history of swollen or painful joints, and marked no for history of foot trouble. On the October 1984 separation examination, the examiner marked normal for the condition of his feet.

The claims file contains records of postservice treatment of the Veteran from 2010 forward. In VA treatment in May 2010, he reported episodic swelling in his right great toe and foot. Right foot x-rays showed mild degenerative changes at the first interphalangeal joint, and an ossific density of the calcaneus described as possibly representing sequela of prior trauma. A clinician provided an impression of degenerative joint disease (DJD) of the right great toe. In June 2010, the Veteran reported pain in his left and right great toes. A clinician noted pain with motion of the left great toe distal interphalangeal (DIP) joint. X-rays showed DJD at that joint. In September 2010, the Veteran reported occasional pains in his toes. In November 2010, he reported a five year history of pain and stiffness in both great toes, with recent worsening. In March 2011, he related a years-long history of episodic joint pains, with pain presently in his toes and knees bilaterally. In May 2011, he reported pain in both great toes with recent worsening in the right great toe. A clinician noted pain on motion.

In a private examination in August 2012, the Veteran reported that during service he did more than 90 parachute jumps. He stated that presently he had bilateral foot pain, with a dull ache and burning at times. He indicated that he while working as a commercial driver he had increased foot pain with braking. He reported a history of swelling in both great toes. He related that he had chronic arthritis in both feet. The examiner observed that the Veteran's right foot turned laterally at rest. The examiner noted that foot pain restricted his ability to climb or to stabilized his foot and leg.

In the May 2015 Board hearing, the Veteran reported that during service parachute jumping and landing and long marches carrying heavy packs caused problems in many parts of his body. He stated that during parachute jumping duties he was in constant pain. He asserted that presently he had arthritis throughout his body. 

On VA examination in May 2016, the Veteran reported that when he entered service he did not know that he had pes planus, and he was accepted for service despite a finding of pes planus on examination. He indicated that during service he experienced pain and swelling in his feet. He stated that after service he worked in construction for several years. He reported that presently he experienced chronic bilateral foot pain with weightbearing. He related when he worked as a commercial driver he had increased foot pain that interfered with that work. The examiner reported having reviewed the claims file. The examiner noted the report of pain with use of both feet. Both feet had decreased arch with weightbearing. The examiner noted that x-rays had shown degenerative changes in both feet. The examiner found that both of the Veteran's feet had pes planus and degenerative arthritis. The examiner expressed the opinion that it is less likely than not that current foot disorders were incurred in service. The examiner explained that he had mild pes planus at entrance to service, but that medical records did not show ongoing foot problems during service or at separation from service. The examiner found that the evidence did not relate the current bilateral great toe arthritis to his service.

The Veteran was found to have mild pes planus on examination at entrance to service. Later in service, in examinations in 1979, 1983, and 1984, he denied history of foot problems, and examiners found that his feet were in normal condition. Based on the medical evidence, his pes planus did not undergo any increase in disability during service, and so was not aggravated in service. An August 1982 injury included injury of the right ankle and foot. As later medical records do not reflect ongoing complaints, and later examinations resulted in findings of normal feet, the evidence from service tends to show that the right foot injury resolved before the end of service. The Veteran's reports that he did parachute jumping and long marches in service are relevant, but the absence of foot problems at separation from service tends to show that those activities were not followed by lasting problems.

There is no indication of disabling arthritis in either or both of the Veteran's feet ankle within a year following his service, so there is no basis to presume service connection for foot arthritis. From 2010 forward he has reported past and present pain in both great toes, and x-rays have shown arthritis in great toe joints bilaterally. The VA physician who examined him in 2016 persuasively opined against a relationship between events in service and the current arthritis. The greater persuasive weight of the evidence is against that arthritis being related to service.


Chronic Arthritis

The Veteran contends that events during service, including parachute jump landings and strenuous marches, led to arthritis all over his body. VA has established service connection for disabilities in joints including the left and right knees and right ankle. VA has denied service connection for disabilities in the shoulders, hips, left ankle, and joints in the hands, low back, and feet. The Veteran has an informal claim for service connection for a neck disability that is pending before the RO. For the issue currently on appeal the Board understands chronic arthritis to mean arthritis of a generalized nature, that is, arthritis all over or affecting many joints.

The Veteran's service treatment records show treatment on several occasions for pain following injuries to specific areas such as a knee, an ankle, or the low back. Treatment records do not reflect a report on any occasion of generalized pain throughout many joints. On examinations during service, and in the October 1984 separation examination, examiners did not find any generalized or widespread arthritis.

In May 2010, the Veteran requested service connection for chronic arthritis. In an August 2010 statement, he wrote that he had chronic arthritis in his joints and bones. In a June 2012 statement, he reported having pain and discomfort in all of his joints. In the May 2015 Board hearing, he stated that his service duties were very physically demanding, and that he now had arthritis throughout his body.

The assembled postservice medical records are from 2010 forward. In VA treatment visits the Veteran reported pain in specific joints, such as the knees, toes, and shoulders. Clinicians examined him and provided assessments addressing specific joints. No clinician has found that he had generalized arthritis. VA examinations in 2010, 2012, 2014, 2016, and 2017 have addressed issues involving specific joints. No examiner has found that he has generalized arthritis.

There is no indication that the Veteran had generalized arthritis within a year following his service, so there is no basis to presume service connection for generalized arthritis. In the absence of medical evidence of generalized arthritis currently or during service, the preponderance of the evidence is against service connection for chronic, generalized arthritis.

Right Knee Scars

Service connection is established for arthritis of the Veteran's right knee and for surgical scars on that knee. In a July 2012 rating decision, the RO granted service connection, effective September 7, 2010, for a right knee scar, and assigned a 0 percent rating. In August 2012 the Veteran filed a notice of disagreement (NOD) with that rating decision. In September 2016 the RO issued a statement of the case (SOC) that included the issue of the rating for the right knee scar. In October 2016 the Veteran filed a substantive appeal in response to the September 2016 SOC. 

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2.

The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran appealed the initial rating the RO assigned for the right knee scar. The Board is considering what ratings are warranted from September 7, 2010, forward.

Under the rating schedule, scars that are not on the head, face, or neck, and that are linear, are assigned ratings based on whether the scars are deep or superficial, based on whether they are unstable or painful, and based on the area of the scars. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. If a scar has any disabling effects that are not considered under Diagnostic Codes 7800 to 7804, it is to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1).

For scars that are not on the head, face, or neck, are not unstable, and are not painful, for a compensable (higher than 0 percent) rating the scars must have an area of at least 6 square inches (sq. in.) or 39 square centimeters (sq. cm.) if the scars are deep, and at least 144 sq. in. or 929 sq. cm. if the scars are superficial. 

On VA examination in May 2012, the examiner noted that the Veteran had knee scars. The examiner stated that none of the knee scars was painful or unstable, and that the total area of all of the knee scars was not greater than 6 sq. in. or 39 sq. cm.

On VA examination in May 2014, the examiner reported that the Veteran had on his right knee three linear scars, with lengths of 5 cm, 0.5 cm, and 0.5 cm. None of the scars was unstable, and none was painful. None of the scars resulted in limitation of function of his right knee or leg, nor had any effect on his capacity for work. 

From September 7, 2010, the scars on the Veteran's right knee have not been unstable and have not been painful. Those scars have a total area not greater than 6 sq. in. or 39 sq. cm. The scars have not impaired function. Therefore those scars have not met the criteria for a compensable disability rating.


ORDER

Entitlement to service connection for bilateral shoulder disability is denied.

Entitlement to service connection for bilateral hand disability is denied.

Entitlement to service connection for bilateral hip disability is denied.

Entitlement to service connection for left ankle disability is denied.

Entitlement to service connection for bilateral foot disability is denied.

Entitlement to service connection for chronic, generalized arthritis is denied.

From September 7, 2010, entitlement to a compensable disability rating for right knee scars is denied.


REMAND

The Board is remanding to the RO, for additional action, the issue of the ratings for right knee disability and issue of a TDIU.

The RO established service connection, effective February 25, 2010, for disability of the Veteran's right knee, described as residuals of right knee injury with mild degenerative arthritis. The Veteran appealed that initial disability rating. In a January 2017 rating decision, the RO granted for that right knee disability an increase to a 20 percent rating, effective from October 27, 2016. The Veteran has continued his appeal, and is seeking higher ratings for the disability for all periods.

The most recent VA medical examination addressing the Veteran's right knee disability was performed in October 2016. That examination is sufficiently recent. In 2016, however, the Court, in Correia v McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include testing of joints for pain on both active and passive motion, and in weight-bearing and non-weight-bearing, and include recording of the range of motion of the opposite undamaged joint. The Court's holding in Correia establishes additional requirements that must be met before finding that a VA examination is adequate. The report of the October 2016 VA examination addresses the range of motion of the right knee, indicates that there is pain on motion and pain with weight-bearing, and records the range of motion of the Veteran's left knee, which also has disability. That examination but did not indicate, however, whether there was pain on motion with both active and passive motion. The reports of earlier examinations of the knees in September 2010, May 2012, and May 2014 also do not address all of the factors noted in Correia. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim.

The Veteran contends that the combined effects of his service-connected disabilities make him unemployable. VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of disability ratings for service-connected disabilities. 38 C.F.R. § 4.16(a) (2017). If a veteran's disability ratings do not meet the combinations required under 38 C.F.R. § 4.16(a), but his service-connected disabilities nonetheless make him unable to secure or follow a substantially gainful occupation, rating boards are to submit the case to the Director of the VA Compensation Service for consideration of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b).

The Veteran's service-connected disabilities are disabilities of the left and right knees and right ankle, scars on the left and right knees, and hypertension. The Board presently is remanding his appeal for higher ratings for the right knee disability. Because the outcome of that appealed issue could affect his ratings, it could affect his TDIU claim. The Board therefore is remanding the TDIU issue for reconsideration after the requested development and reconsideration of the right knee rating issue.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to address the current manifestations of his right knee disability. Provide his claims file to the examiner for review. Ask the examiner to review the claims file and examine the Veteran. Ask the examiner to conduct all necessary tests of the function and functional impairment of the Veteran's right knee, including active and passive ranges of motion, ranges of motion in weight-bearing and non-weight-bearing. Ask the examiner to report whether there is evidence of pain with active motion, passive motion, motion in weight-bearing, and motion in non-weight-bearing. Ask the examiner to report, for comparison purposes, the ranges of motion of the left knee. Ask the examiner to report whether the right knee has functional impairment due to pain, weakness, fatigability, or incoordination, or with repeated use or flare-ups. Ask the examiner to describe any functional impairment from such factors as equivalent to degrees of additional loss of motion, if feasible.

2. Then review the expanded record and reconsider the claim for higher disability ratings for the right knee disability.

3. Then review the expanded record and reconsider the claim for a TDIU.

4. Then, if any remanded matter is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and give them an opportunity to respond before returning the case to the Board for further appellate consideration.

The Board intimates no opinion as to the ultimate outcome of the remanded matters. The Veteran has the right to submit additional evidence and argument on those matters. 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).




______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs