Citation Nr: 21064435 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 13-28 625A DATE: October 20, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 16, 2012, is denied. Entitlement to a compensable disability rating prior to November 16, 2012, and to a disability rating greater than 20 percent thereafter, for left lower extremity diabetic neuropathy of the sciatic nerve is denied. Entitlement to a compensable disability rating prior to November 16, 2012, and to a disability rating greater than 20 percent thereafter, for left lower extremity diabetic neuropathy of the femoral nerve is denied. Entitlement to a compensable disability rating prior to November 16, 2012, and to a disability rating greater than 20 percent thereafter, for right lower extremity diabetic neuropathy of the sciatic nerve is denied. Entitlement to a compensable disability rating prior to November 16, 2012, and to a disability rating greater than 20 percent thereafter, for right lower extremity diabetic neuropathy of the femoral nerve is denied. FINDINGS OF FACT 1. The record evidence shows that a right knee disability is not related to active service. 2. The record evidence shows that, prior to November 16, 2012, the Veteran's service-connected disabilities, alone or in combination, did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 3. The record evidence shows that, prior to November 16, 2012, the Veteran's bilateral lower extremities diabetic neuropathy was not manifested by mild incomplete paralysis of the sciatic or femoral nerves. 4. The record evidence shows that, effective November 16, 2012, the Veteran's bilateral lower extremities diabetic neuropathy resulted in no more than moderate incomplete paralysis of the sciatic and femoral nerves. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for a TDIU prior to November 16, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. The criteria for a compensable disability rating prior to November 16, 2012, and for a disability rating greater than 20 percent thereafter for left lower extremity diabetic neuropathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, Diagnostic Code (DC) 8520. 4. The criteria for a compensable disability rating prior to November 16, 2012, and for a disability rating greater than 20 percent thereafter for left lower extremity diabetic neuropathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, DC 8526. 5. The criteria for a compensable disability rating prior to November 16, 2012, and greater than 20 percent thereafter for right lower extremity diabetic neuropathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, DC 8520. 6. The criteria for a compensable disability rating prior to November 16, 2012, and greater than 20 percent thereafter for right lower extremity diabetic neuropathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to June 1972. He died in December 2014 and the Appellant is his surviving spouse. In February 2017, she was accepted as a substitute claimant for the purpose of processing this appeal to its completion. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2007, May 2009, and August 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. In September 2018, the Board remanded the claims on appeal, as well as a claim for service connection for posttraumatic stress disorder (PTSD), to the RO for additional development. The Board also remanded claims of entitlement to earlier effective dates for the awards of 20 percent ratings for the bilateral lower extremities diabetic neuropathy of the sciatic and femoral nerves for the issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). While on remand, a May 2020 rating decision granted service connection for PTSD. Because this action represents a full grant of the benefits sought with respect to this claim, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Agency of Original Jurisdiction (AOJ) (in this case, the RO) also issued an SOC on the earlier effective date claims in June 2020. Because the Appellant did not perfect an appeal on these claims, they also are no longer before the Board. Service Connection 1. Entitlement to service connection for a right knee disability The Veteran contended, prior to his death, that his right knee disability was related to injuries sustained during active service. Specifically, during his August 2011 Decision Review Officer (DRO) hearing, he testified that he injured his right knee while playing flag football, following a fall while stationed in Vietnam, and due to a mortar attack while stationed in Duc Lap. His service treatment records (STRs) reflect that, in October 1970, he complained of pain in his right knee following a football game. The impression was knee sprain. The remainder of his STRs are negative for any complaints, treatment, or diagnosis referable to his right knee. His April 1972 separation examination revealed that his lower extremities were normal upon clinical evaluation. He denied swollen or painful joints, arthritis, and "trick" or locked knee in the corresponding Report of Medical History. The Board notes in this regard that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Post-service treatment records indicate that the Veteran had a severe degree of degenerative osteoarthritic changes in the right knee since October 2003. A December 2019 VA examiner found that a right knee disability was less likely than not incurred in or related to the Veteran's active service, to include his October 1970 right knee sprain while playing football, as well as his contention of right knee injuries while stationed in Vietnam and in Duc Lap. The rationale for this opinion was based on a review of the claims file which documented that the Veteran was diagnosed with chronic severe right knee degenerative osteoarthritis approximately 30 years after military service. The rationale also was based on a review of relevant medical literature which indicated that a knee strain was caused when muscle fibers were abnormally stretched or torn and there was no bone, joint, or nerve involvement and a knee strain would not progress to degenerative arthritis as such are two separate and distinct medical conditions. The examiner explained that osteoarthritis was the most common form of arthritis and often affected the hands, knees, feet, and hips. He also explained that pain typically was the symptom that led people to present to health care providers and subsequently receive a diagnosis of osteoarthritis. The examiner noted that the Veteran's risk factors included advanced age (especially after 50 years of age), genetics, anatomic factors, repetitive movements, kneeling, regular stair climbing, crawling, bending, whole-body vibration, heavy physical workload (especially repetitive knee bending), and obesity (most important factor to weightbearing joints). He also noted that individuals with a body mass index (BMI) more than 30 kg/m2 were 6.8 times more likely to develop knee osteoarthritis than normal-weight controls. The examiner concluded that the in-service right knee sprain was consistent with an acute injury that resolved without residuals. He also concluded that the diagnosed right knee disability was more than likely multifactorial to include, but not limited to, his history of working in a physically laborious job after service and his morbid obesity. The Board affords great probative weight to the December 2019 VA examiner's opinion. The Board also finds this opinion adequate for adjudication purposes. This opinion reflects consideration of all of the pertinent evidence of record, to include statements of the Veteran and relevant medical history. It also provides a complete rationale by relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has considered the Veteran's lay assertions as to the etiology of his right knee disability. As a layperson, however, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the etiology of a right knee disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and may not be addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Moreover, whether the symptoms the Veteran reportedly experienced during or after service are in any way related to his diagnosed right knee disorder is a matter which requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). Accordingly, the Veteran's opinion as to the onset and etiology of his right knee disability is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record does not show that arthritis of the right knee manifested to a compensable degree within one year of separation from service. In this regard, the STRs reflect that the Veteran's lower extremities were normal upon clinical evaluation at the time of his April 1972 separation examination. And the first objective evidence of arthritis of the right knee was noted in October 2003, more than 30 years after his service separation. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The December 2019 VA examiner indicated that the Veteran was diagnosed as having chronic severe right knee degenerative osteoarthritis approximately 30 years after service. Having reviewed the record evidence, the Board finds that service connection for arthritis of the right knee on a presumptive basis, to include on the basis of a continuity of symptomatology, is not warranted. See also 38 C.F.R. §§ 3.307, 3.309. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a right knee disability. In summary, the Board finds that service connection for a right knee disability is not warranted. 2. Entitlement to a TDIU prior to November 16, 2012 The Board notes initially that the Veteran's TDIU claim stems from his increased rating claims for his bilateral lower extremities diabetic neuropathy of the sciatic and femoral nerves. In other words, the issue before the Board is entitlement to a TDIU from July 28, 2007, the date that VA received the Veteran's increased rating claims. As of July 28, 2007, he is in receipt of a 100 percent schedular rating with the exception of the following period: November 1, 2007, to November 16, 2012, where he is in receipt of a combined disability rating of 80 percent. In other words, he met the schedular criteria for a TDIU for the entire appeal period. He also is in receipt of special monthly compensation (SMC) at the housebound rate since November 16, 2012. Thus, the issue of entitlement to a TDIU prior to this date is moot. The Board next notes that VA has a "well-established" duty to maximize a claimant's benefits. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294 (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for SMC provided by that statute. Under the law, § 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. For SMC purposes, a TDIU based on a single service-connected disability satisfies the requirement of a "service-connected disability rated as total." See Buie 22 Vet. App. at 251; Bradley, 22 Vet. App. at 293. Therefore, the claim of entitlement to a TDIU for the period from November 1, 2007, to November 16, 2012, and based on a single disability from July 28, 2007, to November 1, 2007, is before the Board. For the entire appeal period, the Veteran is in receipt of service connection for coronary artery disease (CAD), PTSD, diabetes mellitus, bilateral lower extremities diabetic neuropathy of the sciatic and femoral nerves, and bilateral upper extremities diabetic neuropathy. As an initial matter, the Board notes that, prior to his death, the Veteran did not contend, and the record does not show, that his service-connected PTSD, diabetes mellitus, and bilateral upper extremities diabetic neuropathy impacted his ability to work. Specifically, in his June 2009 VA Form 21-8940 (formal TDIU claim), he only alleged that his CAD, nonservice-connected back disability, and bilateral lower extremities diabetic neuropathy of the sciatic and femoral nerves rendered him unemployable. Similarly, at his August 2011 DRO hearing, his representative only alleged that the service-connected CAD and bilateral lower extremities diabetic neuropathy rendered the Veteran unemployable. In his June 2009 VA Form 21-8940, he reported that he previously worked on a full-time basis as a laborer from November 1977 to December 28, 2007, when he retired due to disability. He completed three years of high school and earned his GED. He was unable to work as he could not walk long distances or sit for prolonged periods of time due to his back problems. Social Security Administration (SSA) records reflect that the Veteran became disabled as of July 30, 2007, based on a primary disability of degenerative disc disease and a secondary disability of degenerative joint disease in both knees. While the SSA decision is probative evidence in regard to his TDIU claim, it is not dispositive or binding on VA since the agencies have different disability determination requirements. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Further, SSA found that the Veteran was disabled due to a combination of nonservice-connected disorders. In regard to the functional impairment associated with the Veteran's CAD and bilateral lower extremities diabetic neuropathy, during his January 2009 VA examination, he reported that he experienced chest pain, and fatigue after walking one block. He also indicated that, after walking 1/5 of a mile on the treadmill, his leg went numb and he had to stop. He reported that, while he was working, he used to hide and sit down all the time due to the symptoms in his legs which was why he retired early. At a December 2009 VA examination, the examiner stated that the Veteran stopped working in 2007, following his labor job for 30 years. This examiner also stated that the Veteran missed a lot of work due to multiple issues regarding his back and knees. Further, the examiner concluded that the Veteran had to stop working in December 2007 due to all of his medical issues which included diabetes, severe degenerative disc disease of the lumbar spine, and severe arthritis of both knees. Thus, it would not be feasible for him to seek gainful employment in the physical or sedentary environment. At a February 2011 VA examination, the examiner found that the Veteran's CAD did not impact his ability to work. In this regard, the examiner reported that the Veteran retired due to an inability to perform his labor duties which was not related to his cardiac disorder. This examiner noted that the Veteran occasionally would drive large tractors, have difficulty breathing, and experience an inability to stand; however, his inability to perform duties based on shortness of breath was noncardiac-related. Having reviewed the record evidence, the Board finds that, for the appeal period where a 100 percent schedular rating is not in effect, the Veteran's service-connected disabilities in combination did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. The Board also finds that, for the period where a 100 percent schedular rating is in effect and SMC at the housebound rate has not been awarded, a single service-connected disability did not render him unable to secure and follow a substantially gainful occupation consistent with his education and work history. Specifically, the evidence of record reflects that it was a combination of the Veteran's nonservice-connected disabilities, to include his back and knee disorders, which rendered him unemployable. Neither the Veteran, prior to his death, nor the Appellant, after his death, otherwise identified or submitted any evidence demonstrating entitlement to a TDIU prior to November 16, 2012. In summary, the Board finds that the criteria for a TDIU prior to November 16, 2012, have not been met. Increased Rating The appeal period before the Board begins on July 28, 2007, the date VA received the Veteran's claim for increased ratings for his bilateral lower extremities diabetic neuropathy of the sciatic and femoral nerves, plus the one-year look back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 3. Entitlement to a compensable rating prior to November 16, 2012, and in excess of 20 percent thereafter, for left lower extremity (LLE) diabetic neuropathy of the sciatic nerve. 4. Entitlement to a compensable rating prior to November 16, 2012, and in excess of 20 percent thereafter, for LLE diabetic neuropathy of the femoral nerve. 5. Entitlement to a compensable rating prior to November 16, 2012, and in excess of 20 percent thereafter, for right lower extremity (RLE) diabetic neuropathy of the sciatic nerve. 6. Entitlement to a compensable rating prior to November 16, 2012, and in excess of 20 percent thereafter, for RLE diabetic neuropathy of the femoral nerve. Turning to the evidence of record, at a January 2009 VA examination for diabetes mellitus, he reported numbness, tingling, and pain in his legs, which was brought on by prolonged walking, sitting, or standing. He further reported occasional burning in his feet. Additionally, he endorsed flare-ups of numbness and tingling in his legs that occurred often and lasted a long time. Objective examination revealed that he was unable to walk on his heels, toes, or do tandem walking. He had difficulty with heel-shin coordination due to low back pain. Sensation to monofilament was diminished in the right foot and intact in the left foot. Position sense was normal. Vibratory sensation was diminished in both feet. Babinski's test was negative. And lower extremity strength was 4/5 to 5/5. Here, the examiner noted that the nerves involved would be the tibial, sural, or peroneal nerves of the feet. Diagnoses included diabetic neuropathy as related to the Veteran's burning in both feet; however, the examiner determined that the Veteran's pain, numbness, and tingling in his legs were secondary to his back disorder and not his diabetes mellitus. In a December 2009 VA general examination, the Veteran reported burning, numbness, and tingling of the balls of his feet and his toes. Here, the examiner noted that the Veteran had to traverse stairs non-reciprocally, leading with his right leg; however, this was secondary to his knee and back issues and not his peripheral neuropathy. Additionally, the examiner performed a peripheral nerve examination on the Veteran's feet only and determined that the peripheral nerves identified would include peroneal/sural. A March 2011 VA examination for diabetes mellitus reflects that the diagnosis of bilateral lower extremities peripheral neuropathy referred to the tingling, numbness, and heaviness of his feet with cramping and pain in his toes. Here, the examiner determined that identification of the nerves involved included the peroneal and sural. Having reviewed the record evidence, the Board finds that, for the appeal period prior to November 16, 2012, compensable ratings for the bilateral lower extremities diabetic neuropathy of the sciatic and femoral nerves are not warranted. The record evidence does not show that such disabilities were manifested by mild incomplete paralysis. The Veteran reported subjective symptoms, to include sensations of pain, numbness, and tingling in his legs; however, the VA examiners found that such symptoms were related to his back and/or knee disorders rather than his diabetes mellitus. These examiners also determined that the peripheral nerves involved included only the tibial, peroneal, and/or sural nerves as related to his diabetes mellitus. Thereafter, on VA examination on November 16, 2012, the Veteran reported moderate paresthesias and/or dysesthesias, and moderate numbness in the LLE and RLE. Muscle strength was normal and reflex testing was normal except in the bilateral ankles which had absent reflexes. Sensory examination revealed normal sensation in the right and left knee/thigh, ankle/lower leg, and foot/toes. Position sense and vibration sensation was normal in the bilateral lower extremities; however, he experienced decreased cold sensation of the bilateral lower extremities. Based on the objective evidence of decreased reflex and sensation in the LLE and RLE with increased subjective symptomatology, but without impairment in muscle strength, the examiner found that the diabetic neuropathy of the LLE and RLE resulted in no more than moderate incomplete paralysis of the sciatic and femoral nerves. Consequently, as of November 16, 2012, the Board finds that disability ratings greater than 20 percent for the bilateral lower extremities diabetic neuropathy of the sciatic and femoral nerves are not warranted. The Board acknowledges the Veteran's sincerely held belief that his diabetic neuropathy of the LLE and RLE are more severe than reflected by the currently assigned ratings. In this regard, while he is competent to describe his symptomatology and resulting functional impairment, he is not competent to provide a medical opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his service-connected disabilities. In summary, the Board finds that the criteria for increased ratings for the bilateral lower extremities diabetic neuropathy of the sciatic and femoral nerves have not been met. The claims are denied. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.