Citation Nr: 18150343 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-19 234 DATE: November 15, 2018 ORDER Service connection for bilateral peripheral neuropathy, to include as secondary to herbicide agent exposure, is denied. A left knee disability rating in excess of 10 percent prior to December 6, 2011, and in excess of 30 percent from February 1, 2013, is denied. Entitlement to a total disability rating for individual unemployability (TDIU) prior to December 6, 2011, and from February 1, 2013, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War and is presumed to have been exposed to herbicide agents in service. 2. The Veteran’s bilateral peripheral neuropathy did not manifest in service or in the first post-service year, and is not shown to be otherwise etiologically related to his active service, including due to herbicide agent exposure. 3. Prior to December 6, 2011, the Veteran’s left knee disability was manifested by symptomatic removal of semilunar cartilage; symptoms of locking, effusion, and pain were not demonstrated. 4. From February 1, 2011, the Veteran’s left knee disability has been status post knee replacement and manifested by residual weakness, pain, and limitation of motion. 5. Prior to December 6, 2011, and from February 1, 2013, the Veteran has not been precluded from securing or following a substantially gainful occupation due to his service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral peripheral neuropathy, to include as secondary to herbicide agent exposure, have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 2. The criteria for a rating in excess of 10 percent prior to December 6, 2011, and in excess of 30 percent from February 1, 2013, for left knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5256-5263, 5055 (2018). 3. The criteria for a TDIU rating prior to December 6, 2011, and from February 1, 2013, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1969. 1. Service connection for bilateral peripheral neuropathy, to include as secondary to herbicide agent exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires: (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (i.e., a nexus) between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence on an issue material to a determination, the VA resolves reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for bilateral peripheral neuropathy. His service treatment records are silent for any complaints of, treatment for, or diagnosis of bilateral peripheral neuropathy or associated symptomatology. His post-service treatment records show bilateral peripheral neuropathy was diagnosed in 2009, which is several decades after service. Based on the foregoing information, there is no evidence that the Veteran’s current bilateral peripheral neuropathy was manifested in service or to a compensable degree in the first year following his separation from active duty service. Consequently, service connection for bilateral peripheral neuropathy on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not alleged (nor has he submitted competent evidence to show) that he has suffered from bilateral peripheral neuropathy continuously since service. See 38 C.F.R. § 3.303(b). Instead, the Veteran asserts that his bilateral peripheral neuropathy should be service-connected because he was exposed to herbicide agents in service. The Veteran’s DD-214 reflects that he had service in the Republic of Vietnam during the Vietnam War. Therefore, he is presumed to have been exposed to herbicide agents. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption includes early-onset peripheral neuropathy. 38 C.F.R. § 3.309(e). Significantly, early-onset peripheral neuropathy may be presumptively service-connected only if the disease “become[s] manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active” service. 38 C.F.R. § 3.307(a)(6)(ii). As the Veteran’s bilateral peripheral neuropathy is not of the early-onset type and did not manifest to a degree of 10 percent or more within a year after his departure from Vietnam during the Vietnam War, the herbicide agent exposure presumptive provisions of 38 U.S.C. § 1116 do not apply to his claim for service connection for bilateral peripheral neuropathy. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on herbicide agent exposure is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the Board has considered whether the Veteran’s bilateral peripheral neuropathy is otherwise related to his service, to specifically include his exposure to herbicide agents therein. After reviewing the record, the Board finds there is no competent evidence in the record of a nexus between the Veteran’s bilateral peripheral neuropathy and in-service exposure to herbicide agents. His post-service treatment records and letters from his treatment providers address only the diagnosis and treatment of his bilateral peripheral neuropathy, and do not contain any opinions concerning the etiology of that disability. The Veteran’s statements relating his bilateral peripheral neuropathy to herbicide agent exposure in service are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation in this matter; whether a disease/condition is related to herbicide agent exposure is a complex medical question, and is not capable of resolution by lay observation. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board sympathetically finds that the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral peripheral neuropathy. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the appellant’s claim for service connection, that doctrine is not applicable. See 38 U.S.C § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a rating in excess of 10 percent prior to December 6, 2011, and in excess of 30 percent from February 1, 2013, for left knee disability. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As a preliminary matter, the Board notes that the Veteran was assigned the maximum (100 percent) rating from December 6, 2011, to February 1, 2013, for his left knee disability. Therefore, the period from December 6, 2011, to February 1, 2013, is no longer on appeal. Prior to December 6, 2011 Prior to December 6, 2011, the Veteran’s left knee disability was rated at 10 percent under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage. The Board will consider whether entitlement to a rating under Diagnostic Code 5258 for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is appropriate for this matter. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Other Diagnostic Codes relating to the knee are Diagnostic Code 5256 for ankylosis, Diagnostic Code 5262 for impairment of tibia and fibula, Diagnostic Code 5257 for recurrent subluxation or lateral instability, and Diagnostic Code 5263 for genu recurvatum. Those conditions are not shown on examination, or in the medical evidence of record, and the Board finds that application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. Although the Veteran had a diagnosis of arthritis prior to December 6, 2011, he would not be entitled to a compensable rating because the arthritis did not involve 2 or more major joints that are service-connected. Id., at Diagnostic Code 5003. Therefore, the Board finds that application of that Diagnostic Code is not warranted. The Board has considered whether Diagnostic Code 5260 for limitation of flexion and 5261 for limitation of extension are appropriate. A rating under Diagnostic Code 5260 is appropriate when flexion is limited to 60 degrees or less. A rating under Diagnostic Code 5261 is appropriate when extension is limited to 5 degrees or more. Prior to December 6, 2011, the Veteran’s flexion was, at worst, to 120 degrees, and his extension was, at worst, to 0 degrees (or full extension). As the Veteran’s flexion was never 60 degrees or less and his extension was never limited to 5 degrees or more prior to December 6, 2011, the Board finds that application of these Diagnostic Codes is not warranted. Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage. This is the maximum schedular evaluation available under this Diagnostic Code. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. This is the maximum schedular evaluation available under this Diagnostic Code. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). The Veteran underwent meniscectomy in service. Prior to December 6, 2011, he exhibited some symptoms of pain, but not frequent episodes of locking, pain, and effusion. In the March 2010 VA examination, the examiner stated that the Veteran indicated that he did not experience any locking. This is consistent with the Veteran’s private and VA treatment records which do not indicate any left knee locking. Similarly, in the March 2010 VA examination, the examiner stated that the Veteran indicated that he did not experience any effusion and the examiner did not find any signs of effusion. This is consistent with private treatment records prior to December 6, 2011, which explicitly state that there was no left knee effusion. As the Veteran did not have frequent episodes of locking, pain, and effusion in the left knee, a 20 percent rating under Diagnostic Code 5258 is not warranted. Based on the foregoing, the Board concludes that a criteria for a rating in excess of 10 percent for left knee disability have not been met. The preponderance of the competent evidence of record does not support the grant of a rating in excess of 10 percent prior to December 6, 2011, for the service-connected left knee disability. In reaching this conclusion, the benefit-of-the-doubt doctrine has been considered; however, as the preponderance of the evidence is against the claim for an increase, that doctrine is not applicable. 38 C.F.R. § 4.3. From February 1, 2013 From December 6, 2011, the Veteran’s left knee disability was temporarily rated as 100 percent disabling until January 31, 2013, under Diagnostic Code 5055. Subsequently, the Veteran’s left knee disability has been rated as 30 percent disabling. Under Diagnostic Code 5055 a 100 percent rating is only assigned for one year following the implantation of the prosthesis (i.e., the knee replacement surgery). Thereafter, the Veteran is assigned a minimum rating of 30 percent. Intermediate degrees of residual weakness, pain, or limitation of motion, may be granted by analogy to Diagnostic Codes 5256, 5261, or 5262. A rating of 60 percent is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board finds that intermediate degrees of residual weakness, pain, or limitation of motion, as analogous to Diagnostic Codes 5256, 5261, or 5262, are not warranted. Diagnostic Code 5256 is for ankylosis. The April 2015 VA examiner found that the Veteran does not have a diagnosis of ankylosis. This finding is consistent with the Veteran’s private and VA treatment records, which do not include a diagnosis for ankylosis. Therefore, an intermediate degree rating would not be appropriate under that Diagnostic Code. Diagnostic Code 5261 is for limitation of flexion and Diagnostic Code 5262 is for limitation of extension. A rating under Diagnostic Code 5260 is appropriate when flexion is limited to 60 degrees or less. A rating under Diagnostic Code 5261 is appropriate when extension is limited to 5 degrees or more. From February 1, 2013, the sole record regarding the Veteran’s left knee range of motion was from an April 2015 VA examination report. The examiner found that the Veteran’s flexion was to 140 degrees and his extension was 0 degrees (or full extension). Therefore, an intermediate degree rating would not be appropriate under those Diagnostic Codes. Still, a 60 percent rating would be appropriate if the Veteran’s left knee disability manifested chronic residuals consisting of severe painful motion or weakness in the affected extremity. The evidence does not support a finding that the Veteran’s left knee disability manifests in severe painful motion or weakness in the left knee. During the April 2015 VA examination, the examiner found no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner further found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. Similarly, a March 2017 private treatment record (submitted in May 2017), noted that the Veteran had weakness in his legs due to his joint replacements (both knees and right hip) and his neuropathy. Notably, the treatment provider found that the Veteran was limping favoring his left knee, a sign that the left knee was the least painful area. Therefore, the Board finds that a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity is not appropriate. The Board recognizes that in August 2018 written correspondence, the Veteran’s representative contended that if the benefit sought could not be granted, then the claim should be remanded for a new VA examination, as the Veteran had not been examined since April 2015. However, the mere passage of time is not a sufficient basis for a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007. The Veteran’s representative does not contend (and the record does not otherwise indicate) that there has been a material change in the Veteran’s left knee disability since his last VA examination such that a reexamination would be necessary to ascertain its current severity. In summary, the Board concludes that the criteria for a rating in excess of 30 percent for left knee disability have not been met. The preponderance of the competent evidence of record does not support the grant of a rating in excess of 30 percent from February 1, 2013, for the service-connected left knee disability. In reaching this conclusion, the benefit-of-the-doubt doctrine has been considered; however, as the preponderance of the evidence is against the claim for an increase, that doctrine is not applicable. 38 C.F.R. § 4.3. 3. Entitlement to TDIU. VA regulations provide that total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to permanently render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 C.F.R. § 4.16(a). In order for claimants who have one service-connected disability to qualify for TDIU under section 4.16(a), that disability must be rated 60 percent or greater. Id. In order for claimants who have two or more service-connected disabilities to qualify for a total disability rating, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant’s disabilities must be 70 percent or greater. Id. For the purpose of determining whether the Veteran’s disability ratings constitute a single disability rated 60 percent or multiple disabilities one of which is rated 40 percent or greater, certain disabilities can be combined if, among other possibilities, the disabilities share a common etiology. Id. It is VA’s policy that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director, Compensation Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Id. By itself, the fact that a veteran is unemployed or has difficulty obtaining employment is not enough to establish entitlement to TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “The question is whether the veteran is capable of performing the physical and mental acts required by employment.” Id. As the Veteran was assigned a 100 percent rating for his service-connected left knee disability from December 6, 2011, to February 1, 2013, and he has no other service-connected disabilities, that period is no longer on appeal. Prior to December 6, 2011, the Veteran was assigned a 10 percent disability rating for his left knee disability. From February 1, 2013, his left knee disability has been assigned a 30 percent rating. As noted, the Veteran is not service-connected for any other disabilities. As the Veteran has not had a single service-connected disability ratable at 60 percent or more, or at least one disability ratable at 40 percent or more with a combined rating of 70 percent or more, he does not meet the requisite disability ratings to qualify for a TDIU under 38 C.F.R. § 4.16(a). After a thorough review of the record, the Board finds that referral for extraschedular consideration for the period prior to December 6, 2011, or from February 1, 2013, is also not warranted. See 38 C.F.R. § 4.16(b). In making this finding, the Board has considered the Veteran’s service-connected disability, employment history, educational attainment, and all other factors having a bearing on this issue. The record prior to December 6, 2011, does not support a finding of TDIU. The March 2010 VA examiner found that the Veteran’s left knee disability did not impact his daily activity or usual occupation. This is consistent with an October 2010 treatment record indicating that the Veteran had full range of motion and was “pain free.” Similarly, the record from February 1, 2013, does not support a finding of TDIU. Prior to the end of the one-year temporary 100 percent rating period, a November 2012 treatment record indicated that the Veteran’s left knee was “great” and that the pain in his knees was related to peripheral neuropathy. During an April 2015 VA examination, the examiner found that the Veteran’s left knee disability did not impact his ability to perform any type of occupational task (such as standing, walking, lifting, sitting). In May 2017, the Veteran provided a private medical record from March 2017. In the private medical record, the Veteran’s treatment provider indicated that the Veteran should be on “full and total disability” due to his “multiple orthopedic and medical problems.” That treatment provider found that the Veteran had weakness in his legs due to his joint replacements (both knees and right hip). Notably, the treatment provider found that the Veteran was limping favoring his left knee, a sign that the left knee was the least painful area. Further, the treatment provider did not attribute the Veteran’s unemployability due to his service-connected left knee disability alone or note any significant problems specifically associated with the Veteran’s left knee disability. Instead, the treatment provider considered the Veteran’s left knee disability in conjunction with his other medical problems and found him to be unemployable. The Veteran submits that he should be granted TDIU because he has received total disability from the Social Security Administration (SSA). SSA provides total disability benefits based on the combined effects of all of an individual’s health problems. VA, however, only provides total disability ratings based on service-connected disabilities; in this case, the Veteran’s left knee disability. Although the Veteran’s statement in his April 2016 Form 9 indicates that he received SSA benefits for his left knee disability, SSA documents indicate that they considered the Veteran’s left knee disability; severe arthritis of the shoulder, back, and hands; blood clots in the left knee; high blood pressure; and high cholesterol. Therefore, the Board finds that the Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected left knee disability prior to December 6, 2011, or from February 1, 2013. Accordingly, the Board finds that prior to December 6, 2011, and from February 1, 2013, the Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected disability. Therefore, the Veteran’s claim for TDIU prior to December 6, 2011, and from February 1, 2013, is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Shah, Associate Counsel