Citation Nr: 1802591	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  08-17 635	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for an Achilles tendon disability.

2.  Entitlement to an evaluation in excess of 10 percent disabling for traumatic arthritis of the right knee.

3.  Entitlement to an evaluation in excess of 10 percent disabling for traumatic arthritis of the left knee.

4.  Entitlement to an evaluation in excess of 10 percent disabling for limitation of extension of the right knee prior to January 1, 2016, and to a compensable rating thereafter.

5.  Entitlement to an evaluation in excess of 10 percent disabling for limitation of extension of the left knee prior to January 1, 2016, and to a compensable rating thereafter.

6.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for depression.

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


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Hubers, Counsel


INTRODUCTION

The Veteran served on active duty from June 1975 to April 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Veteran testified before the Board in October 2011.  The claims file contains a transcript of the hearing.  The Veterans Law Judge who conducted the hearing is unavailable to participate in a decision in this matter.  In October 2017, VA notified the Veteran of his right to have another Board hearing.  The Veteran has not opted for an additional hearing, so the Board may proceed to the merits without another hearing.

In February 2012, the Board remanded the Achilles tendon claim for further development and readjudication.  The RO substantially complied with the Board's remand instructions.  Specifically, an examination was conducted and a supplemental statement of the case was subsequently issued.  Accordingly, the Board may proceed to the merits.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance).

The remaining issues on appeal include the claims relating to increased ratings for his knees, new and material evidence with respect to a depression claim, and entitlement to TDIU.  Those claims (listed as Issues #2-7 above) were denied by the RO in a September 2013 rating decision.  The Veteran timely filed a Notice of Disagreement in November 2013.  The RO has not issued a Statement of the Case and the Veteran has not withdrawn that appeal.  Therefore, the Board will remand those matters for the issuance of a Statement of the case.

The Veteran also initiated an appeal with respect to the rating and effective date assigned for his service-connected hearing loss.  See August 2012 Notice of Disagreement; July 2012 Rating Decision.  However, he withdrew his appeal of the hearing loss (rating and effective date) claims prior to perfecting his appeal.  See June 2014 Statement in Support of Claim.  Therefore, those issues are not before the Board.

The issue(s) of entitlement to higher evaluations for traumatic arthritis of the right and left knee and for limitation of extension of the right and left knees, new and material evidence to reopen a claim of entitlement to service connection for depression, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).






FINDINGS OF FACT

The weight of the evidence is against a finding of current Achilles tendon disability of either leg or of any other ankle or lower leg disorder.


CONCLUSION OF LAW

The criteria for service connection for an Achilles tendon disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the claims file.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake, infra. 


Duties to Notify and Assist

The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  The Veteran has not alleged any deficiencies in the VA examinations or opinions of record.  Thus, the Board need not discuss any potential issues in this regard.

Entitlement to Service Connection:  Achilles Tendon

The Veteran asserts entitlement to service connection for an Achilles tendon disability.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Entitlement to service connection requires a current disability and, here, the greater weight of the evidence is against finding that the Veteran has a current disability.

Most pertinently, the Veteran underwent a January 2013 VA examination for the purpose of determining whether the Veteran had a disability of the Achilles tendon or other ankle disability of either leg.  The examiner determined that the Veteran did not have and had never had an ankle condition.  The examiner noted the Veteran's complaints of swelling when sitting and becoming stiff and painful, but found there was no diagnosable condition.  The examiner measured range of motion as limited to 40 degrees of plantar flexion and 15 degrees of dorsiflexion (bilaterally) after repetitive-use testing with the limitation due to pain.  The examiner listed the functional impairments as including less movement than normal, pain on movement, and disturbance of locomotion.  He also noted pain on palpation of the ankles bilaterally.  

The Veteran's medical records (VA and private) do not contain any diagnosis of an Achilles tendon disability, ankle disability, or other similar condition and there are no competent medical opinions in the claims file that are contrary to the opinion of the January 2013 VA examiner that the Veteran does not have an ankle disability.  

The Veteran has stated his own belief that he has an Achilles tendon disability.  However, the record contains no indication that he has the specialized education, training, or experience needed to determine the nature or severity of his subjective symptoms.  This is particularly so where the Veteran has multiple medical conditions of the legs (e.g., knee disabilities), some with potentially overlapping symptoms (e.g., functional limitations relating to walking and standing), and the proper diagnosis of the conditions generally requires specialized medical training and/or diagnostic testing.  See King, 700 F.3d at 1344-45; Jandreau, 492 F.3d at 1377.  The Board finds that the Veteran's opinions regarding the etiology of the medical conditions relevant to this appeal are not competent evidence in the circumstances of this case.  The Board has, however, considered the lay statements to the extent they are relevant in evaluating the relative weight to be accorded the etiological opinions of the medical professionals who treated or examined the Veteran.

In summary, the Board finds that the greater weight of the evidence is against finding that the Veteran has had an Achilles tendon or ankle disability during the appeal period.  While he has reported some subjective symptoms and there is some evidence of minor limitation of motion (e.g., 40 degrees plantar flexion with 45 degrees being normal; 15 degrees of dorsiflexion with 20 degrees normal), the only competent medical opinion of record finds that the Veteran does not have a disability of the ankles.  His medical records are otherwise silent for an ankle or Achilles tendon disability where, if he had a disability, it would be expected that any such condition would be noted in the regular course of medical treatment for lower extremity symptoms.  See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (the silence in a medical record can be given probative weight if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder).

In making the finding that the Veteran does not have a current disability, the Board relies primarily on the VA examiner's conclusion.  No other competent evidence finds otherwise.  Moreover, the Board notes that pain alone is not a basis for an award of service connection; rather, there must be an underlying chronic disability.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).

For the foregoing reasons, the Board finds that the evidence is not in equipoise, but the greater weight of the evidence is against finding that the Veteran has an Achilles tendon or other ankle disability.  Gilbert, 1 Vet. App. at 53-56.  Because the Board finds that the Veteran did not have an Achilles tendon or ankle disability, the criteria for establishing service connection for an Achilles tendon or ankle disability have not been met.  38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."); 38 C.F.R. § 4.125(a); see also Gilpin v. West, 155 F.3d 1353, 1355 (Fed. Cir. 1998).  Entitlement to service connection for an Achilles tendon or ankle disability is denied.


ORDER

Entitlement to service connection for an Achilles tendon disability is denied.






REMAND

As discussed in the Introduction, the Veteran initiated an appeal of his claims seeking entitlement to higher evaluations for traumatic arthritis of the right and left knees and for limitation of extension of the right and left knees, whether there is new and material evidence sufficient to reopen a claim of entitlement to service connection for depression, and entitlement to TDIU.  However, the AOJ has not yet issued a Statement of the Case with respect to those claims.  Remand is required for the issuance of a Statement of the Case.  See 38 C.F.R. § 19.9(c) (2017), codifying Manlincon v. West, 12 Vet. App. 238 (1999).  Any further development deemed necessary with respect to those claims should be completed.

Accordingly, the case is REMANDED for the following action:

1. Obtain any outstanding, relevant VA medical records.

2.  After conducting any additional development deemed necessary, issue a statement of the case with respect to the claims of entitlement to higher evaluations for traumatic arthritis of the right and left knees and for limitation of extension of the right and left knees, whether there is new and material evidence sufficient to reopen a claim of entitlement to service connection for depression, and entitlement to TDIU.

Then, advise the appellant, in writing, of the requirements for perfection of an appeal of that issue.  If a timely substantive appeal is not filed, the claim should not be certified to the Board.

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).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs