Citation Nr: 1803819 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-00 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected tendonitis patella tendon and medial collateral tendon left knee. 2. Entitlement to an evaluation in excess of 10 percent disabling for service-connected tendonitis patella tendon and medial collateral tendon, right knee. 3. Entitlement to service connection for diabetes mellitus-type II, to include as secondary to service-connected bilateral knee disabilities. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from June 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 and February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran was previously represented by Counsel, however, representation was withdrawn in September 2015. The Board also notes that the Veteran testified in a hearing before the undersigned Veterans Law Judge in October 2017. A transcript of the hearing has been associated with the claims file. On review of the record, the Board finds that the issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. During the October 2017 Travel Board hearing, the Veteran indicated that the current severity of his bilateral knee disabilities limits his ability to walk/stand/exercise, causes pain, and interferes with his employment as a bus driver due to increased pain resulting for prolonged sitting which is unabated by use of anti-inflammatory medications or regular use of knee braces. The Board, therefore, finds that an inferred claim of entitlement to a TDIU has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of an increased rating claim. The Veteran's increased rating claims, and the claim of entitlement to TDIU benefits, are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDING OF FACT The Veteran's diabetes mellitus did not manifest during, or as a result of, active military service, nor was it caused by or aggravated by his service-connected bilateral knee disabilities. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for diabetes mellitus-type II, to include as secondary to the Veteran's service-connected bilateral knee disabilities, have not been met. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Relevant Laws and Regulations Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110, 1131 (West 2015); 38 C.F.R. §§ 3.303 (a), 3.304 (2017). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2017). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2016). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must also fully consider the lay assertions of record. When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159 (a)(2) (2017). However, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); See also 38 C.F.R. § 3.159 (a)(1) (2017). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In determining whether service connection is warranted for a disorder, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends that he is entitled to service connection for diabetes mellitus. Specifically, the Veteran has asserted that this disability has resulted from his gaining of weight due to an inability to exercise because of his service-connected bilateral knee disabilities. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's diabetes mellitus was neither caused by, nor permanently aggravated by, his service-connected knee disabilities. Furthermore, the preponderance of the evidence of record demonstrates that the Veteran's diabetes mellitus did not manifest during, or as a result of, active military service. The Veteran's STRs (service treatment records) are negative for symptoms, complaints, treatment, or diagnosis of diabetes. The Veteran's separation examination, dated June 1980, did not contain any reference to an abnormal endocrine system or other defects. A urinalysis at this time was also deemed to be negative. A report of medical history from the same month notes the Veteran's complaints of chronic pain in both knees. The record contains no further evidence of an in-service disease or injury associated with diabetes mellitus, or treatment of this condition within one year of separation from active duty. In fact, the first evidence of this condition is approximately 24 years after the Veteran's separation from active duty. Post service treatment records reveal that the Veteran was diagnosed with diabetes mellitus-type 2 in 2004. Metformin was prescribed to treat his condition. The record contains no competent evidence suggesting any relationship between this diagnosis and military service. In September 2012, the Veteran underwent a VA examination to assess the nature and etiology of his diabetes mellitus, type II. On review of the evidence and clinical evaluation, the prior diagnosis of diabetes was confirmed. The examiner opined that the Veteran's diabetes is less likely than not (less than 50 percent probability) proximately due to or the result of active service or his service-connected bilateral knee condition. In reaching the stated conclusion, the examiner noted a review of current medical literature and stated that it does not support a causal linkage between a bilateral knee condition (patellar tendinopathy status post repair patella fracture of the left knee and/or patellar tendinopathy patellar fracture of the right knee) and the development of diabetes mellitus type II. The opinion noted that a bilateral knee disability is not a known or recognized risk factor for the development of diabetes. Further, the examiner opined that non-weight bearing physical activities are a viable option to promote weight loss and improve control of the Veteran's diabetes with minimal use of the bilateral lower extremities. Accordingly, the examiner concluded that the Veteran's diabetes mellitus type II was not permanently aggravated (worsened beyond the natural progress) by the Veteran's service connected disabilities. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for diabetes mellitus on a direct basis. There is no evidence of symptomatology or treatment during military service. Rather, the first evidence of this condition is more than 20 years after military service. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In this case, the absence of any medical evidence of treatment for diabetes mellitus for approximately 24 years after separation from service tends to establish that the Veteran's current disability was not a result of his military service. Finally, the VA examiner concluded that it was less likely than not that the Veteran's diabetes mellitus was a result of military service after examining the Veteran, the medical evidence of record and the relevant medical literature. As such, there is no basis for establishing entitlement to service connection for diabetes mellitus on a direct basis. In his October 2017 hearing testimony, the Veteran asserted that his diabetes developed as a consequence of inactivity or an inability to exercise due to his service-connected bilateral knee disabilities. The preponderance of the evidence is against his claim. As previously noted, service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a) and (b) (2017). In the present case, the VA examiner opined that it was less likely than not that the Veteran's diabetes mellitus was either caused by or permanently aggravated by his service-connected knee disabilities. The examiner noted reviewing medical literature and finding no basis for such a causal link. In addition, nonweight-bearing exercises are still available to the Veteran. As such, the preponderance of the evidence demonstrates that the Veteran's diabetes mellitus is not secondary to his service-connected bilateral knee disabilities. In making all determinations, the Board must also fully consider the lay assertions of record. When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the Board acknowledges that the Veteran's October 2017 hearing testimony asserted that his diabetes mellitus type II developed as due to inactivity caused by his service-connected bilateral knee conditions. While the Board recognizes that the Veteran is competent to describe his current symptoms, the record does not suggest that he has the medical training and expertise necessary to determine whether his diabetes was caused or aggravated by a service-connected disability (that is whether the underlying internal disability permanently worsened). See Jandreau v. Nicholson, 492 F. 3d. 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). Review of the record reveals competent medical opinions and supportive rationale indicating that the Veteran's diabetes mellitus type II was neither caused nor aggravated by his service-connected bilateral knee disabilities. In fact, the September 2012 examiner noted the availability of non-weight bearing physical activities that would promote weight loss and improve control of the Veteran's diabetes with minimal use of the bilateral lower extremities. Therefore, greater probative weight is afforded to the VA examiner's opinion as it consistent with the evidence of record and there is no competent medical evidence to refute it. While the Board is sympathetic to the Veteran's contention that his diabetes was caused by or related to inactivity resulting from his bilateral knee disabilities, the medical evidence does not support a causal relationship or nexus between his condition and active service or the Veteran's service connected disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017). The Veteran's claim of entitlement to service connection for diabetes mellitus-type II, to include a secondary to his service-connected bilateral knee disabilities, must be denied. ORDER Service connection for diabetes mellitus-type II, to include a secondary to the Veteran's service-connected bilateral knee disabilities, is denied. REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). In this case, the Veteran contends that his service-connected bilateral knee disabilities are more severe that currently rated and a higher evaluation is warranted. In his October 2017 hearing testimony, the Veteran reported that he suffers from frequent swelling, difficulty walking, performing any form of exercise, limitation of motion, and pain due to his bilateral knee disabilities. He also stated that his bilateral knee condition limits his employment as a bus driver, in that prolonged sitting, bending, or standing causes excess pain that is unabated by use of anti-inflammatory medications or wearing knee braces. The Veteran contends that his symptoms have worsened since his prior VA examination and notes frequent absences from work due to the severity of his pain. The record indicates that the Veteran underwent a VA examination in April 2013 to assess the nature and current severity of his bilateral knee conditions. Addendum opinions were requested and prepared in November and December 2013. Opinions from the aforementioned examinations were not located in the claims file. Accordingly, copies of the above referenced records must be obtained and associated with the claims file. The Board also notes that the Veteran specifically indicated that his bilateral knees disability have worsened since his prior VA examination and therefore, a new examination is required. Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination may be appropriate. Caffery v. Brown, 6 Vet. App. 377 (1995); see also VAOPGCPREC 11-95 (1995). Accordingly, a new examination should be scheduled to evaluate the current severity of the Veteran's service-connected bilateral knee disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997 In light of the Board's remand of the Veteran's claim of entitlement to an increased rating for his bilateral knee disabilities, the Board finds that the claim of entitlement to a TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). As such, the Board defers ruling on this matter until after the mandates of the Remand have been completed; Tyrues v. Shinseki, 23 Vet. App. 166, 177-78 (2009) (en banc). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and opinion, and associate them with the Veteran's claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected bilateral knee disability of the left and right knee. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. (a). In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b). The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If it is not feasible to do so to any degree of medical certainty without resorting to speculation, then the examiner must provide an explanation for why this is so. (c). The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If it is not feasible to do so to any degree of medical certainty without resorting to speculation, then the examiner must provide an explanation for why this is so. (d). Range of motion of the Veteran's left and right knee should be tested actively and passively, in weight bearing and non-weight bearing, and after repetitive use. 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 this is so. 2. Then re-adjudicate the claims of entitlement to an evaluation in excess of 10 percent disabling for the Veteran's service-connected tendonitis patella tendon and medial collateral tendon of the left and right knee. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a SSOC should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs