Citation Nr: 1759989 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-00 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for stomach ulcers. 2. Entitlement to an initial rating in excess of 10 percent for postoperative medial meniscectomy of left knee with residuals and arthritic changes. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1962 to October 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board remanded the case for further development in March 2017. The case has since been returned to the Board for appellate review. The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's March 2017 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). The Veteran requested a videoconference hearing before a member of the Board in his December 2012 Substantive Appeal. Although a hearing was scheduled for November 1, 2016, the Veteran cancelled his request for a hearing in a phone call received by VA in October 2016. Consequently, the Veteran's request for a personal hearing is deemed withdrawn. 38 C.F.R. § 20.702(e). FINDINGS OF FACT 1. A stomach ulcer did not manifest during service and is not related to the Veteran's active service. 2. The Veteran's left knee disability was manifested by subjective complaints of pain and instability with objective evidence of compensable limitation of motion on flexion and arthritis established by X-ray findings, with pain but no instability or subluxation of the left knee 3. The Veteran has failed to meet his evidentiary burden that his service-connected disabilities, considering his education and work history, preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. A stomach ulcer was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for a rating in excess of 10 percent under Diagnostic Codes (DC) 5010-5259 are not met. The criteria for a separate 10 percent rating under DC 5003-5260 are met for the entire period under consideration. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5259, 5260, (2017). 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 5103 (a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially the Board notes that VA regulations provide that a claimant has a responsibility to attend a VA examination to help establish entitlement to a claim. 38 C.F.R. §§ 3.326, 3.327 (2017). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (a) (2017). Here, the record shows that the Veteran was scheduled to undergo a VA examination in August 2017, but he did not report to the examination and did not show good cause for not reporting to it. Administrative records show that the AOJ contacted the Veteran by telephone, where the Veteran informed VA that he is unable to travel, that he feels that VA has enough information, and that he does not need to attend another VA examination. Notably, the Veteran did not explain why he unable to travel to a VA examination. While the actual notice letters of the scheduled VA examinations in August 2017 are not on file, administrative records on file indicate that proper notice was provided to the Veteran by the VAMC. Moreover, the Veteran has not asserted that he did not receive notice of the examinations. The Board thus concludes that the Veteran was properly notified of the scheduled examinations. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). Also, the Veteran has been informed in the August 2017 Supplemental Statement of the Case (SSOC) that he did not report, and he has not indicated a willingness to do so. Instead, the Veteran stated that he does not need to attend any further VA examinations. Accordingly, the Board will proceed with the appeal based on the evidence of record. 38 C.F.R. § 3.655. Service Connection Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. Lay evidence may be competent on a variety of matters concerning the nature and cause of a disability. Jandreau v. Nicholson, 492 F.3d 1372 at 1377 (Fed. Cir. 2007); see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has "rejected the view . . . that 'competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'" (quoting Jandreau, 492 F.3d at 1377)). For example, a Veteran is competent to provide evidence about what he has experienced or observed. Layno v. Brown, 6 Vet.App. 465, 469 (1994). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Once the threshold of competence is met, 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. Competence must be distinguished from credibility. Competence is "a legal concept determining whether testimony may be heard and considered;" credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Layno, 6 Vet.App. at 469. The Board must assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet.App. 362, 367 (2001). In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden, 125 F.3d at 1481 (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for stomach ulcers. The Veteran contends that his current stomach ulcers began in service. Specifically he stated that his in-service weight loss and stomach pain were symptoms of his current stomach ulcers. See December 2012 VA Form 9. The Veteran's service treatment records are silent for documentation of stomach ulcers. The records reveal no complaints of or treatment for stomach ulcers in service. The record does show that the Veteran complained of stomach numbness while in service. See September 1964 service treatment record. As discussed below, based on the evidence of record, that complaint was not a symptom of his current stomach ulcers. Further at his October 1984 separation clinical evaluation, the Veteran was found to be in normal condition. The post service clinical evidence is silent for an indication of a stomach ulcer disability for many years following the Veteran's separation from service. While the Veteran has stated that his in-service stomach pains were a precursor to more serious stomach ulcers, the medical records do not show that the Veteran was treated for a stomach ulcer disease until many years after service. Indeed the Veteran has not contended that he sought treatment for any diagnosed stomach ulcer disability shortly after service. In view of the lack of any evidence of any stomach ulcer disability manifestations for many years after discharge, the Board finds that any assertion of an in-service onset and ongoing manifestations are outweighed by the contemporaneous evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In connection with his claim, the Veteran was afforded a VA examination in March 2011. At that examination, the examiner opined that it was less likely than not that the Veteran's current stomach problems were related to service. The examiner diagnosed the Veteran with irritable bowel syndrome (IBS) and remote duodenal ulcers and opined that it is less likely than not that the Veteran's stomach problems were related to service. The examiner explained that the service treatment records showed no treatment or signs or symptoms of ulcer problems in service. However, the examiner failed to discuss the significance, if any, of the Veteran's in-service weight loss and whether it was related to his stomach problems. Thus the opinion does not reflect the VA examiner's consideration of the entire evidence of record; the resulting opinion is of limited probative value. The Board does acknowledge that the Board remanded the claim for a new medical opinion to determine whether the Veteran's current stomach disability is related to his service. However, as discussed above, the Veteran has not been responsive. Thus, the claim must be decided based on the evidence of record. 38 C.F.R. § 3.655. Veterans are expected to cooperate in the efforts to adjudicate a claim, and the failure to do so subjects them to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board has also considered the Veteran's lay statements that his in-service weight loss and stomach pain were symptoms of his current stomach disability. See December 2012 VA Form 9. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship. Moreover, even assuming the Veteran's lay assertions regarding etiology were competent, the Board nevertheless finds the March 2011 VA medical opinion to be more probative, as it based on the examiner's own medical expertise, knowledge, and training. Based on the foregoing, the Veteran's stomach ulcers did not manifest in service or within one year after and is not causally or etiologically related to his military service. Accordingly, the claim for service connection for stomach ulcers is denied. Increase rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends he is entitled to an initial disability rating in excess of 10 percent for postoperative medial meniscectomy of left knee with residuals and arthritic changes. The Veteran's left knee disability is currently rated under Diagnostic Code 5010-5259. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.20 (2017). A hyphenated diagnostic code generally reflects rating by analogy to a closely related condition that best approximates the disability picture. See 38 C.F.R. §§ 4.20 and 4.27. In this case DC 5259 is used for rating the Veteran's symptomatic removal of the semilunar cartilage, while DC 5210 relates to traumatic arthritis, the underlying source of the disability. Diagnostic Code 5259 assigns a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a (2017). A higher rating is not available under DC 5259, as 10 percent is the highest rating available under that code. Diagnostic Codes relevant to knee disabilities include 5003, 5010 and 5256 through 5261. Under Diagnostic Codes 5003 and 5010, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The evidence shows the Veteran has developed arthritis in his left knee, which was shown in X-rays discussed in the December 2010 VA examination. Arthritis is rated under the appropriate codes regarding limited motion pertaining to the joint involved, or, if there is no limited motion, then a 10 percent rating is assigned when there is evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned when there is involvement of 2 or more major joints, or 2 or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a, DC 5003 (2017). On physical examination the Veteran's extension was noted as 0 degrees, pain was not noted. He began to feel pain on flexion at 90 degrees but his motion was limited to 120 degrees. The examiner noted that repetitive flexion and extension showed no change in the Veteran's range of motion. However, the Veteran did have increased pain. The examiner found that there was no instability of the left knee. The Veteran's left knee range of motion was also tested in June 2016. Again, his range of motion was 0-120 degrees, with pain at the extreme of flexion. See June 2016 VA treatment record. Normal flexion is to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2017). Thus, the Veteran has limited flexion. At the June 2016 testing, the rheumatologist reviewed the Veteran's May 2016 X-ray which notes that the Veteran's had degenerative changes in his left knee. The rheumatologist then diagnosed the Veteran with osteoarthritis. Limited flexion is rated under DC 5260, which assigns a 10 percent rating when flexion is limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and, a 30 percent rating when limited to 15 degrees. Id. When evaluating disabilities causing limited motion, it is necessary to consider both the schedular criteria and any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 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.; see 38 C.F.R. § 4.40. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Board finds that the evidence warrants a separate rating under DC 5003-5260, which addresses his arthritis with painful motion. See 38 C.F.R. § 4.27 (setting forth and explaining the assignment of hyphenated diagnostic codes). Accordingly, a separate 10 percent rating under DC 5003-5260 is being granted for painful and limited motion due to arthritis. The evidence does not show that a higher rating is warranted. His worst flexion measurement was to 120 degrees, which well-exceeds the criteria for even a noncompensable rating. Even when taking into account his functional loss, the evidence does not show that his range of motion was ever reduced to 30 degrees or less, which is what is required for the next higher rating. The evidence does not support a separate rating for limited extension. 38 C.F.R. § 4.71a, DC 5261 (2017). Under DC 5261, limited extension to 5 degrees warrants a 0 percent rating; to 10 degrees warrants a 10 percent rating; to 15 degrees warrants a 20 percent rating; to 20 degrees warrants a 30 percent rating; to 30 degrees warrants a 40 percent rating; and, to 45 degrees warrants a 50 percent rating. Id. The evidence shows that he has always been able to fully extend. As above, his functional limitations have not been shown to reduce his extension to a compensable level. The evidence does not show ankylosis, impairment of the tibia and fibula, recurrent sublaxation or lateral instability, or genu recurvatum, therefore DCs 5256, 5257, 5262, and 5263 are not applicable. The Board finds that the evidence does not support a separate rating for any other Diagnostic Code related to the Veteran's knee. Indeed, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Moreover, the Board notes that that no other diagnostic codes provide a basis for any higher or additional ratings for the Veteran's left knee disability. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Once again the Board acknowledges that the Board's remand in March 2017 found that an examination was necessary to evaluate any worsening of the left knee disability and to determine the extent of worsening if found. However, as discussed above, the Veteran has not been responsive. In fact, the Veteran stated that he does not need to attend anymore VA examinations. Thus, the claim must be decided based on the evidence of record. 38 C.F.R. § 3.655. The Board therefore concludes that the Veteran has not demonstrated symptoms consistent with the general level of impairment warranting an evaluation in excess of 10 percent. Thus, a grant of an increase evaluation is not warranted. However, a separate 10 percent evaluation under Diagnostic Codes 5003-5260 is warranted. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16. The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration shall be given to the Veteran's level of education, special training, and previous work experience. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The law provides that a total disability rating for compensation based on a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board notes the Veteran was provided a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with the March 2017 notice letter. Moreover, the Veteran was notified in his August 2017 rating decision, and August 2017 SSOC that this form was needed in order to further consider his TDIU claim. To date, he has not responded or provided the requested information. The duty to assist is not a one-way street; if a claimant wishes help in developing his or her claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, because the Veteran did not respond to VA's request for additional information, the Board is constrained to find that he has not met his evidentiary burden for a TDIU, as the Veteran has not provided additional information about his education and prior work experience. Id. (holding that "[t]he duty to assist is not always a one-way street"). The Board is grateful for the Veteran's honorable service. However, the Secretary is not obligated to grant a claim for benefits simply because there is no evidence disproving it. See 38 U.S.C. § 5107 (a)("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009)(stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009)(interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Given the record before it, the Board concludes that a TDIU is not warranted. ORDER Entitlement to service connection for stomach ulcers is denied. Entitlement to an initial rating in excess of 10 percent for postoperative medial meniscectomy of left knee with residuals and arthritic changes is denied. A separate rating of 10 percent for arthritis with painful limited motion under DC 5003-5260 is granted. Entitlement to TDIU is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs