Citation Nr: 1802047	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  11-17 591	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus type II.

2.  Entitlement to service connection for degenerative disc disease of the spine.

3.  Entitlement to service connection for left arm nerve damage.

4.  Entitlement to a rating higher than 20 percent for right knee anterior cruciate ligament insufficiency with chondral contusion.

5.  Entitlement to a compensable rating for right foot hallux valgus.

6.  Entitlement to a compensable rating for left foot hallux valgus.

7.  Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU).



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The Veteran served on active duty from June 1974 to June 1977 and from June 1977 to November 1989.

This case comes before the Board of Veterans' Appeals (Board) from November 2008 and February 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In September 2010, an informal conference was held before a Decision Review Officer at the RO; a report of the informal conference is of record.

Following the issuance of the most recent supplemental statement of the case in 2016, additional treatment records were added to the claims file without a waiver of Agency of Original Jurisdiction review.  The additional evidence is duplicative of evidence already of record, and it does not have a bearing on the appellate issues herein decided, as it does not provide competent medical evidence of a nexus between the Veteran's claimed disabilities and service.  Therefore, the Board finds that referral of the additional evidence to the RO for initial consideration is not necessary.  See 38 C.F.R. § 20.1304(c).

The claims for entitlement to increased ratings for a right knee disability entitlement to a TDIU addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The preponderance of the evidence fails to establish that the Veteran was exposed to herbicide agents (Agent Orange) during his active service. 

2.  Diabetes mellitus type II did not have its clinical onset in service, was not exhibited within the first post service year, and is not otherwise related to active duty.

3.  Left arm nerve damage did not have its clinical onset in service, was not exhibited within the first post service year, and is not otherwise related to active duty.

4.  Throughout the period of the claim, the Veteran's right foot hallux valgus has manifested as painful motion.

5.  Throughout the period of the claim, the Veteran's left foot hallux valgus has manifested as painful motion.


CONCLUSIONS OF LAW

1.  The criteria for service connection for diabetes mellitus type II have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

2.  The criteria for service connection for left arm nerve damage have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

3.  The criteria for a 10 percent rating have been met for the Veteran's right foot hallux valgus throughout the period of the claim.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.59, 4.71a, DCs 5167, 5276-5284 (2016).

4.  The criteria for a 10 percent rating have been met for the Veteran's left foot hallux valgus throughout the period of the claim.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.59, 4.71a, DCs 5167, 5276-5284 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection for certain chronic diseases, such as arthritis, radiculopathy, and diabetes mellitus, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  

The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms.  38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340.

If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current diseases and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker at 1336; 38 C.F.R. § 3.303(b).  

The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116 (f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service.

Type II diabetes (also known as diabetes mellitus Type II or adult-onset diabetes) is among the listed diseases deemed associated with herbicide exposure under VA law.  38 C.F.R. § 3.309 (e).  As such, diabetes mellitus is a disability for which presumptive service connection based exposure to herbicides may be granted.  Id. 

The Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341 -46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996).  The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010).

Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310 (a).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

Where as here, the service treatment records are incomplete, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  But, this does not lower threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance.  In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened.  Russo v. Brown, 9 Vet. App. 46 (1996).  Moreover, the absence of some of the service treatment records does not create an adverse-presumption rule.  Cromer v. Nicholson, 19 Vet. App. 215 (2005).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. 
§ 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

The Veteran contends that his, type II diabetes mellitus and left arm nerve damage are related to service.  

Concerning diabetes mellitus, the Veteran contends that his diagnosed diabetes mellitus is related to herbicide exposure while on active duty.  Specifically, in a March 2016 statement, the Veteran indicated exposure to herbicides while stationed in Korea between 1976 and 1978.  Reportedly, he served as a dog handler and as a scout.  He listed service with the following units during that time; at Camp Ames in South Korea with the 110th MP Co.; with the 833rd Ordinance Battalion at Camp Carroll, Waegwan, South Korea; with the 2nd Infantry Division, Camp Hovey 1/38 Charlie Co., and; with the 1/38 CSC-Combat Support Company.  He stated that he was diagnosed with diabetes mellitus in 2007.  

During the pendency of this appeal the Veteran has been diagnosed with type II diabetes mellitus, and a left arm disability.  Accordingly, the first element of service connection, a current disability, has been established.  The question before the Board therefore is whether such conditions are related to service.

The Veteran's personnel file shows that he served in Korea from January 1976 to June 1977, with additional service in Korea thereafter.

The Veteran's service treatment records do not show any treatment, complaints, or diagnoses involving the Veteran's back, blood sugar, or left arm.  The Veteran's separation examination report, dated in August 1989, shows that his upper extremities and endocrine system, were clinically evaluated as normal, and that urinalysis was negative for albumin and sugar.

Post-service medical evidence, treatment records after 2008 show diagnoses of diabetes mellitus and cervicalgia with left upper extremity radicular symptoms.  

In May 2011 the AOJ issued a memorandum finding that the available information was insufficient to merit a search of unit records from the U.S. Army and Joint Services Records Research Center (JSRRC).  The memorandum indicated that, during his deployment to Korea, the Veteran reported that he was a dog handler with the 110th Military Police Company and had to walk the perimeter.  It also noted that the Veteran claimed exposure to herbicides as an infantryman with the 2nd Infantry Division.  

The Board finds that the claims must be denied.  With regard to the possibility of service connection on a direct basis, the Veteran was not treated for any relevant symptoms during service.  There are no findings or notations to indicate that he had any of the claimed disorders during service.  He was not treated for any back, left arm, or blood sugar symptoms, during service.  There are no relevant findings or diagnoses during service.  None of the claimed conditions are shown upon separation from service.  Therefore a chronic disorder was not shown during service.  See 38 C.F.R. § 3.303 (a), (b). 

The earliest post-service medical evidence of any of the claimed disorders is dated approximately 18 years after separation from service.  There is no competent opinion of record in support of any of the claims on a direct basis.  There is no evidence of left arm nerve disorder or diabetes, within one year of separation from service.  

The Veteran primarily argues that service connection is warranted for diabetes mellitus based on his exposure to Agent Orange, and that his hypertension is related to his diabetes mellitus.  See 38 C.F.R. § 3.310 (2017).

The Veteran does not argue, and there is no evidence to even suggest, that he served in Vietnam or Thailand.  He is shown to have served in Korea after 1976.  However, the Veteran was not a member of one of the units presumed to have been exposed to Agent Orange during the qualifying time period of April 1, 1968, to August 31, 1971, as his time in Korea came after the close of that presumptive period.  See VA Adjudication Procedure Manual M21-1MR, Part IV.ii.1.H.4.b. As the Veteran is not shown to have served in Vietnam, or to have qualifying service in Thailand or Korea, and he may not be presumed to have been exposed to herbicides such as Agent Orange.  See 38 U.S.C.A. § 1116.  Service connection for diabetes mellitus, type II, is therefore not warranted on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309.  

Unfortunately, a layperson's assertions indicating exposure to gases or chemicals during service are not considered to be sufficient evidence alone to establish actual exposure.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  Thus, his assertions regarding exposure to herbicide agents are not found to be competent evidence.

In addition, there is no competent opinion relating any claimed disability to exposure to Agent Orange.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Accordingly, the claim must be denied on this basis.

As to his left arm disorder or diabetes mellitus and service, the only evidence in support of such a nexus is the Veteran's lay evidence, and to the extent that they are being offered to establish a nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson.  The Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder, diabetes mellitus or a neurological disorder.  See Jandreau; Kahana.  Diabetes mellitus and nerve disorder, are a medically complex disease processes because of their multiple possible etiologies, require specialized testing to diagnose, and manifest symptomatology that may overlap with other disorders.  Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis).  Further, the etiology of the Veteran's current left arm disorder or diabetes mellitus is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran.  Accordingly, the Veteran's assertions as to a relationship between his left arm disorder or diabetes mellitus, and service are of little probative value.

A VA examination or medical opinion as to the etiology of his left arm disorder or diabetes mellitus, was not indicated as there is no suggestion that any of the claimed disorders may be associated with service.  Again, there is no competent evidence of a neurological disorder affecting the left arm disorder or diabetes mellitus, in service or within one year following discharge from service.  Thus, the provisions regarding continuity of symptomatology are not applicable.  See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b) (2017).  

Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for spine disability, left arm disorder or diabetes mellitus, and that the claims must be denied.  The Board has considered the applicability of "benefit of the doubt" doctrine; however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis.  See 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1366 (Fed. Cir. 2001); Gilbert, supra.

Higher Rating

With regard to the Veteran's right and left foot hallux valgus, upon a thorough review of the record, there is no medical evidence that hallux valgus in either foot is severe enough to be equivalent to amputation of the great toe, nor does the evidence show the condition has been operated on in either foot.  Accordingly, a compensable rating under DC 5280 is not warranted for hallux valgus in either foot.  However, the evidence does show the condition has been present and has caused painful bilateral toe motion throughout the period of the claim.  As such, the Board finds separate 10 percent ratings for the Veteran's right and left foot hallux valgus are warranted throughout the period of the claim based on painful motion under 38 C.F.R. § 4.59.  See Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) (holding that 38 C.F.R. § 4.59 is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements.)


ORDER

Service connection for diabetes mellitus type II is denied.

Service connection for left arm nerve damage is denied.

The Board having determined that a 10 percent initial rating is warranted for the Veteran's right foot hallux valgus throughout the period of the claim, subject to the criteria applicable to the payment of monetary benefits.

The Board having determined that a 10 percent initial rating is warranted for the Veteran's left foot hallux valgus throughout the period of the claim, subject to the criteria applicable to the payment of monetary benefits.


REMAND

Concerning the back disability, the Veteran asserts that although a back disability was not diagnosed until 2008, he felt the condition had been symptomatic since the 1990s, and he attributed his disability to the rigors of military life.  

Concerning the claims for compensable ratings for right and left hallux valgus, in an April 2016 statement the Veteran's representative asserted that his bilateral foot hallux valgus was chronically worsening.  Treatment record in 2017 show that toe amputation was being considered, albeit, for a non healing ulcer.  VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.  VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997).  In light of the Veteran's contentions that his right and left hallux valgus have increased in severity, medical evidence that suggests a change in symptoms associated with the claimed disorders than previously recorded, and as the most recent examination of record is now three years old, a new examination to evaluate the severity of the Veteran's disabilities is warranted.  

Concerning the Veteran's claim for a higher rating for the service-connected right knee the Board has reviewed the Veteran's most recent VA examination findings from April 2014.  Since then, the U.S. Court of Appeals for Veteran's Claims (the Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopaedic examinations.  The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so."  In light of these decisions, the Board finds that new VA examinations should be provided addressing the Veteran's right knee disability.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The claim for entitlement to a TDIU is inextricably intertwined with the claims for increased ratings for a right knee disability and bilateral hallux valgus.  Thus, adjudication of the TDIU claim is deferred.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  On remand, relevant ongoing medical records should also be obtained.

Accordingly, the case is REMANDED for the following action:

1.  Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his feet and right knee, and complete and return an appropriate authorization form for each treatment provider identified.  After obtaining the completed release form, request all identified pertinent medical records.  All development efforts should be associated with the claims file.  If the requested records cannot be obtained, the Veteran should be notified of such.

2.  Obtain all relevant outstanding ongoing VA treatment records. 

3.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back symptoms.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

4.  After the development requested above has been completed, schedule the Veteran for a VA examination to determine the nature, onset and etiology of his back disability.  All necessary tests should be conducted and the examiner must specially address the competent lay report of back symptoms since service.  . 

The examiner must also opine as to whether the Veteran's back disability is caused or aggravated by his service-connected disability, to include in the aggregate.

4.  After the development requested above has been completed, schedule the Veteran for a VA examination to assess the current severity of his service-connected right knee disability, to include any functional effects.  The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed.  All findings should be reported in detail.

The examiner should identify all right knee pathology found to be present.  The examiner should conduct all indicated tests and studies, to include range of motion studies.  The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.  

The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time.  

Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

The examiner must also comment on any report of locking and instability.

5.  Then, readjudicate the Veteran's claims on appeal, to include the claim for entitlement to a TDIU.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case.  Allow an appropriate period of time for response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).





______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs