Citation Nr: 21042690
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 18-38 506A
DATE: July 13, 2021

ORDER

Entitlement to increased ratings for sensory deficit of the medial nerve on the left thigh, rated as 10 percent disabling prior to March 13, 2015, and 20 percent disabling from March 13, 2015, is dismissed.

Entitlement to increased ratings for sensory deficit of the medial nerve on the right thigh, rated as 10 percent disabling prior to March 13, 2015, and 20 percent disabling from March 13, 2015, is dismissed.

Entitlement to an effective date of January 7, 2010, but no earlier, for the award of a 40 percent rating for a back disability is granted.

The application to reopen a claim of entitlement to service connection for bilateral pes planus is denied.

Entitlement to service connection for a left knee disorder is denied.

Entitlement to service connection for a right knee disorder is denied.

Entitlement to service connection for a stomach disorder including gastroesophageal reflux disease (GERD) is denied.

Entitlement to a temporary total disability rating due to a period of hospitalization from May 20, 2013, to June 27, 2013, is denied.

REMANDED

Entitlement to increased ratings for a back disability rated as 40 percent disabling from January 7, 2010, 10 percent disabling from April 26, 2018, and 20 percent disabling from February 25, 2019, is remanded.

FINDINGS OF FACT

1. In May 2021, prior to the promulgation of a Board of Veterans' Appeal (Board) decision, the Veteran, via his representative, notified the Board that he wanted to withdraw his appeals as to his claims for increased ratings for sensory deficit of the medial nerve on the left and right thigh, each rated as 10 percent disabling prior to March 13, 2015, and 20 percent disabling from March 13, 2015.

2. The December 2009 rating decision that confirmed and continued a 20 percent rating for a back disability became final when the Veteran did not appeal, new and material evidence was not received by the agency of original jurisdiction within the one-year appeal periods, and the regional office (RO) did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of which are new and material evidence as well as because the Veteran has never claimed there was clear and unmistakable error in that decision.

3. The Veteran submitted an informal claim and met the criteria for a 40 percent rating for a back disability on January 7, 2010, but no earlier, and there is not a factually ascertainable worsening of his symptoms in the one-year look back period.

4. A June 2010 rating decision most recently denied the Veteran's application to reopen his claim of service connection for bilateral pes planus, the claimant did not appeal this decision, he did not submit new and material evidence within the one-year appeal period of this decision, and the RO did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the decision which treatment records are new and material evidence.

5. Evidence received since the June 2010 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for bilateral pes planus.

6. The preponderance of the evidence shows that right and left knee disorder as well as a stomach disorder including GERD were not present in service or until many years thereafter, they are not related to service or to an incident of service origin, and they are not caused or aggravated by a service-connected disability.

7. The preponderance of the evidence shows that the Veteran's hospitalization at a VA Medical Center from May 20, 2013, to June 27, 2013, was for treatment for substance abuse even though he received some treatment for his service-connected depressive disorder during this hospitalization.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the claims for increased ratings for sensory deficit of the medial nerve on the left and right thigh, each rated as 10 percent disabling prior to March 13, 2015, and 20 percent disabling from March 13, 2015, have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for an effective date of January 7, 2010, but no earlier, for the grant of a 40 percent rating for a back disability have been met.  38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.321, 3.400.

3. The June 2010 rating decision is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

4. New and material evidence has not been submitted sufficient to reopen the claim of service connection for bilateral pes planus.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.

5. The criteria for service connection for right and left knee disorder as well as a stomach disorder including GERD have not been met.  38 U.S.C. §§ 101, 106, 1101, 1112, 1113, 1131, 1117, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

6. The criteria for a temporary total disability rating due to a period of hospitalization from May 20, 2013, to June 27, 2013, have not been met.  38 U.S.C. §§ 5107, 7104; 38 C.F.R. § 4.29.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from February 1980 to May 1981 with almost two months of earlier service with a Reserve Component.

At the March 2018 informal conference, the Veteran withdrew his notice of disagreement as to the denial of his claims of service connection for right index finger, left middle finger, gall bladder, and hernia disabilities.

In May 2021 the Veteran, via his representative, withdrew his personal hearing request.

As to the earlier effective date claim, the Board finds that given the May 2011 notice of disagreement that this claim comes to us from an April 2011 rating decision that granted the Veteran a 30 percent rating for his back disability effective from January 20, 2011.  Moreover, given the June 2018 rating decision that granted the Veteran's back disability a 40 percent rating effective from January 20, 2011, the Board has characterized the claim as it appears above. 

As to the claim for increased ratings for a back disability, the Board also finds that this claim comes to us from the April 2011 rating decision that granted the Veteran a 30 percent rating for his back disability effective from January 20, 2011.  Therefore, the Board has characterized the claim as it appears above because the June 2018 rating decision granted the Veteran's back disability a 40 percent rating, a June 2018 rating decision rated it as 10 percent disabling from April 26, 2018, and a October 2019 rating decision rated it as 20 percent disabling from February 25, 2019.  See AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Next, the Board notes that addition records were added to the claims file since the regional office (RO) issued the June 2018 statement of the case (SOC).  However, the Board finds that this evidence is either duplicative of evidence that was in the claims file at the time it issued the SOC or not pertinent as to any of the issues being adjudicated below.  Therefore, the Board finds that it may adjudicate the below issues without first obtaining a waiver of RO review or remanding for its' review.  See 38 C.F.R. § 19.31 (a supplemental statement of the case (SSOC) will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued).  

Lastly, the Board notes that the Veteran's claim for a total rating based on individual unemployability (TDIU) prior to March 29, 2018, will be addressed in a separate decision because that claim is being adjudicated under the Appeals Modernization Act (AMA) review system (the new system) (see 84 Fed. Reg. 138 (Jan. 18, 2019)) and the issues adjudicated below are being adjudicated under the Legacy Appeal system.

The Withdrawals

As to the claims for increased ratings for sensory deficit of the medial nerve on the left and right thigh, each rated as 10 percent disabling prior to March 13, 2015, and 20 percent disabling from March 13, 2015, under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  

Here, in May 2021, prior to the promulgation of a Board decision, the Veteran, via his representative, notified the Board that he wanted to withdraw his appeal as to his claims for increased ratings for sensory deficit of the medial nerve on the left and right thigh, each rated as 10 percent disabling prior to March 13, 2015, and 20 percent disabling from March 13, 2015.  

The Board received this withdrawal before it issued a decision.  The Board also finds that the withdrawals are (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such action on the part of the Veteran.  See Acree v. O'Rourke, 17-1749; DeLisio v. Shinseki, 25 Vet. App. 45 (2011); also see Tomlin v. Brown, 5 Vet. App. 355 (1993) (the transcript of a personal hearing may act as a substantive appeal).

Therefore, there remains no allegation of error of fact or law for appellate consideration with respect to these issues.  Accordingly, the Board does not have jurisdiction to review them and the appeal as to these issues is dismissed.

The Earlier Effective Date Claim

The Veteran asserts, in substance, that the 40 percent rating for his back disability should be effective August 2007.

Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2).  

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  

As to claim's, like the current earlier effective date claim, filed before March 24, 2015, the term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p). 

Before March 24, 2015, the term "claim" or "application" meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).  Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  

In this regard, it is well settled that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing.  See 38 C.F.R. § 3.156(b)(1); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing).  

Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

If a Veteran file's a claim for benefits with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302.  If the Veteran does not perfect an appeal, however, the disallowance becomes final.  See 38 U.S.C. § 7105.  Similarly, denials of claims by the Board are final on the date the decision is issued by the Board.  38 U.S.C. § 7104.  

The finality of that rating decision can only be upset upon a finding of clear and unmistakable error (CUE).  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105.  The effective date of an award based on a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  

The United States Court of Appeals for Veterans Claims (Court) in Turner v. Shulkin, 29 Vet. App. 207 (2018), held that for purposes of finality VA treatment records dated during the appeal period are consider in VA's possession even if these records are not physically associated with the claims file until many years after the regional office (RO) issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period.  The Court also held that these VA treatment records will thereafter only trigger VA's duty under 38 C.F.R. § 3.156(b) if they are new and material evidence.

Thereafter, in Lang v. Wilkie,  971 F.3d 1348, 1354-55 (Fed. Cir. 2020) the United States Court of Appeals for the Federal Circuit removed the sufficient knowledge of the existence of the VA records requirement in Turner.

For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Horton v. Wilkie, No. 18-6269, 2020 U.S. App. Vet. Claims LEXIS 240 (Vet. App. Feb. 12, 2020); Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992).

In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred.  That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty.  It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time.

In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

With the above laws and regulations in mind, the record shows that a December 2009 rating decision confirmed and continued a 20 percent rating for a back disability.  While the record shows that in January 2010 the RO received a statement from the Veteran, the Board finds that this statement does not act as a notice of disagreement because it did not express disagreement with the December 2009 rating decision.  Therefore, the Board finds that the Veteran did not appeal the December 2009 rating decision.  See 38 C.F.R. § 20.302(a).  The Board also finds that additional records were not received by the RO in the first year following the December 2009 rating decision which are new and material evidence.  See 38 C.F.R. § 3.156(b).  In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the December 2009 rating decision which are new and material evidence.  See Turner, super; Lang, super.  Furthermore, the Veteran has never claimed that there was CUE in the December 2009 rating decision.  See 38 U.S.C. § 7105; 38 C.F.R. § 3.105.  

Accordingly, the Board finds that the December 2009 rating decision is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.  Consequently, the Board finds that effective date for the assignment of the 40 percent rating for the back disability may be no earlier than a new application; at some point in time after the final December 2009 rating decision.

Next, the record shows that the April 2011 rating decision that granted the Veteran's back disability a 30 percent rating effective from January 20, 2011, did so because this was the date that it received his formal claim for an increased rating.  Additionally, and as explained above, the June 2018 rating decision granted the Veteran's back disability a 40 percent rating effective from January 20, 2011. 

Initially, the Board finds that the record does not reveal an earlier formal claim for an increased rating for a back disability as defined by 38 C.F.R. § 3.400.  Therefore, the Board finds that this avenue cannot provide a basis for granting the Veteran an earlier effective date for the 40 percent rating for his back disability.  

As to an earlier informal claim for an increased rating for a back disability, on January 7, 2010, the RO received a statement in support of claim from the Veteran in which he stated that "I want to file an increase for degenerative disc disease, left shoulder injury spine."  The Board finds that the Veteran's January 7, 2010, statement in support of claim was an earlier informal claim for an increased rating for a back disability as defined by 38 C.F.R. § 3.1(p).  

However, the Board finds that the record does not include any earlier writing from the Veteran, nor any other record generated after the December 2009 rating decision and prior to January 7, 2010, that acts an earlier informal claim for an increased rating for a back disability as defined by 38 C.F.R. § 3.1(p).  As noted above, to be a claim the writing must include an intent to apply for benefits (see 38 C.F.R. § 3.156(b)(1); MacPhee, supra; Rodriguez, supra) and the Board finds that none of the post-December 2009 rating decision and pre-January 7, 2010, informal claim records, including his treatment records and writings to the RO, contained the needed language.

Therefore, because the effective date of an award of disability compensation is the date of claim or the date entitlement arose, whichever is later, the Board will next consider when, for the first time after January 7, 2010, the Veteran met the criteria for a 40 percent rating for his back disability.  38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2).  

In this regard, and as noted above, first the April 2011 and thereafter the June 2018 rating decision granted the Veteran's back disability a 30 percent, and thereafter a 40 percent, rating effective from January 20, 2011, both under 38 C.F.R. § 4.71a, Diagnostic Code 5243. 

In this regard, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code.  38 C.F.R. § 4.27.  When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Telling the April 2011 and June 2018 rating decisions both granted the Veteran's back disability increased ratings based on the adverse symptomatology reported by the April 2011 VA examiner which included, among other things, flexion being limited to 15 degrees.  

In 2010, like today, the General Rating Formula for Disease and Injuries of the Spine provided a 40 percent rating if forward flexion of the thoracolumbar spine was 30 degrees or less.  38 C.F.R. § 4.71a, Diagnostic Code 5235-5242.  

Moreover, the Court held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date."  Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528).

Therefore, when resolving all reasonable doubt in his favor, the Board finds that the results from the April 2011 VA examination showed that the back's adverse symptomatology approximated the criteria for a 40 percent rating at all times since the RO received his informal claim for an increased rating on January 7, 2010, because it showed that  forward flexion of the thoracolumbar spine was 30 degrees or less because it was only 15 degrees.  See 38 C.F.R. § 4.71a; Owens, supra; Tatum, supra.

Next, the Board will consider whether there is a factually ascertainable worsening of the Veteran's back disability symptoms at any time in the one-year look back period.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); Horton, supra; VAOPGCPREC 12-98.  

Initially, and as noted above, the December 8, 2009, rating decision is final.  Therefore, the look back period in the appeal is only from December 8, 2009, to January 7, 2010, because the Board can not disturb the finality of the December 8, 2009, rating decision.  

As noted above, the Veteran's service-connected back disability was rated as 40 percent disabling under the General Rating Formula for Disease and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Code 5235-5242.  

With the above criteria in mind, the Board notes that while the claims file contains a few treatment records generated during the December 8, 2009, to January 7, 2010, time period, they are negative for complaints and/or treatment for the back disability.  Therefore, the Board finds that nothing in these medical records show that the Veteran met criteria for an increased rating for his back disability because they do not show any complaints and/or treatment for his adverse back symptomatology.  See 38 C.F.R. § 4.71a; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). 

Similarly, the Board find's that the Veteran's written statements cannot provide the missing symptomatology because he does not have the special medical training to provide the needed psychiatric findings.  See Davidson, supra. 

Therefore, the Board also finds that there was not a factually ascertainable worsening of the Veteran's back disability symptoms at any time in the one-year look back period.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98; Horton, supra.

Given the above, the Board finds that that the preponderance of the evidence shows that the Veteran is not entitled to an effective date any earlier than January 7, 2010, for the award of a 40 percent rating for his back disability.

The Application to Reopen

As to reopening the prior final decision of service connection for bilateral pes planus, the record shows that the June 2010 rating decision most recently denied the Veteran's application to reopen.  The rating decision denied the claim because, in substance, the record did not show that the pre-existing pes planus was aggravated by the Veteran's military service.  

The Veteran did not appeal the June 2010 rating decision.  The Board also finds that new and material evidence was not received by the RO in the first year following the issuance of the decision.  See 38 C.F.R. § 3.156(b).  In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the rating decision that are new and material evidence.  See Turner, super; Lang, super.  Accordingly, the Board finds that the June 2010 rating decision is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.  

Since this final June 2010 rating decision, the RO, the Veteran, and/or his representative filed with the VA additional post-service treatment records and the Veteran and his representative filed with the RO additional written statements in support of the claim.  

As to the additional medical records, the Board finds that they continue to document the Veteran's post-service complaints, diagnoses, or treatment for his bilateral pes planus.  However, they continue to be negative for evidence showing that the Veteran's pre-existing disorder was aggravated beyond its' natural progression by his military service.  See 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.304(b); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  Therefore, the Board finds that this medical evidence is neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because it is duplicative.  

As to the Veteran and his representative's written statements in support of the claim, the Board notes that they state, in substance, that the appellant is entitled to service connection for bilateral pes planus because it pre-existed his military service and was aggravated by that service.  However, these assertions were, in substance, before VA at the time of the earlier final rating decision.  They are simply repeating the prior claims.  Moreover, in June 2010 as well as today lay persons like the Veteran and his representative are not competent to diagnose aggravation because it takes special medical training that they do not have.  See Davidson, supra.

Therefore, the Board finds that these statements are neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because they are duplicative.  Simply stated, the Veteran and his representative have repeated the appellant's earlier claims without providing new and material evidence.  

Accordingly, the Board finds that additional evidence added to the claims file since the June 2010 rating decision is, in substance, duplicative of evidence found in the record at the time of the prior final decision.  Accordingly, the application to reopen the claim of service connection for bilateral pes planus is denied.  38 C.F.R. § 3.156(a).

The Service Connection Claims

The Veteran claims that he is entitled to service connection for right and left knee disorder as well as a stomach disorder including GERD because, in substance, they are due to his military service.  Additionally, it is claimed that his bilateral knee disabilities are due to his service-connected back disability and his stomach disorder is due to the medications he takes to treat his service-connected disabilities.  

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  

Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA).  38 U.S.C. §§ 101(24), 106, 1131.

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  

In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d). 

Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  However, presumptive periods do not apply to ACDUTRA or INACDUTRA.  See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).

Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d).  ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State.  38 C.F.R. § 3.6(c)(3).

In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury.  See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019).

The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

As to a current disability, the post-service record shows the Veteran being diagnosed with right and left knee tendonitis and arthritis as well as dyspepsia and GERD.  See, e.g., VA treatment records dated in January 2001 (diagnosing dyspepsia), April 2009 (diagnosing GERD), July 2009 (diagnosing left knee arthritis), and July 2012 diagnosing left and right knee arthritis); VA examinations dated in April 2018 (diagnosing tendonitis and dyspepsia).

Next, the Board finds that the Veteran is competent to report on the events he experienced while on active duty and the manifestations of his disabilities, such as (for example) pain, swelling, and lost motion in all the knees as well as nausea, vomiting, and stomach upset.  See Davidson, supra.  

The Board also notes that service treatment records document the Veteran's periodic complaints and treatment for stomach/abdominal pain and/or upset in May 1980, June 1980, and July 1980.  The diagnosis at those timed was viral disorder. 

However, the Veteran's June 1980 upper GI and bowel series were normal.  Moreover, service and Reserve Component treatment records are negative for injuries, complaints, history, diagnoses, or treatment for right and left knee disorder.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  Likewise, service and Reserve Component treatment records are otherwise negative for injuries, complaints, history, diagnoses, or treatment for a stomach disorder as well as a diagnosis of GERD.  

At this point, it is important for the Veteran to understand that he himself, at this point, provides highly probative factual evidence against these claims.  The Board cannot ignore the fact that the Veteran himself either failed to report having problems with either knee while on active duty or while serving with a Reserve Component.  

The Board finds that the best evidence in this case does not support a finding that the Veteran developed bilateral knee disabilities or a chronic stomach disorder including GERD while on active duty despite the reports of stomach pain/upset while on active duty given the negative service treatment records and the normal June 1980 upper GI and bowel series.  The Veteran's recollection of events from four decades ago, is found to be in error.

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have right and left knee disorder as well as a stomach disorder including GERD while on active duty or right and left knee disorder as well as a stomach disorder including GERD due to an injury while serving with a Reserve Component.  38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303(a); Colvin, supra.  

As to service connection for right and left knee disorder as well as a stomach disorder including GERD based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show the Veteran being diagnosed with any of the claimed disabilities in the first year following his separation from a qualify period of active duty service.  Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for right and left knee disorder as well as a stomach disorder including GERD.  See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307.

Next, the Board will consider whether the Veteran is entitled to service connection for right and left knee disorder as well as a stomach disorder including GERD due to continuity of symptomatology under 38 U.S.C. § 1131; 38 C.F.R. § 3.303(b).  

In this regard, and as noted above, service and Reserve Component treatment records are negative for injuries, complaints, history, diagnoses, or treatment for right and left knee disorder as well as a diagnosis of GERD.  Moreover, the June 1980 upper GI and bowel series were normal.  See Colvin, supra.  

Likewise, and more important than the above, the post-service record is negative for complaints, diagnoses, or treatment for the knee disabilities until 2009 (see, e.g., VA treatment records dated in July 2009 (diagnosing left knee arthritis) and July 2012 (diagnosing left and right knee arthritis); VA examination dated in April 2018 (diagnosing tendonitis)) and a stomach disorder until 2001 (see, e.g., VA treatment records dated in January 2001 (diagnosing dyspepsia) and April 2009 (diagnosing GERD); VA examination dated in April 2018 (diagnosing dyspepsia)); at least two decades after his 1981 separation from active duty.  See Colvin, supra.  

While the Board is certain that the Veteran believes that his right and left knee disorder as well as a stomach disorder including GERD started while on active duty 40 years ago in 1981 and continued to the current time, the Board nonetheless finds such claims incredulous given that none of the active duty or Reserve Component records cited to above ever document history, complaints, diagnoses, or treatment for bilateral knee disabilities and the June 1980 upper GI and bowel series were normal.  See Owens, supra.   

Simply stated, the best evidence in this case, including some of the Veteran's own prior statements, provide evidence against this case.

At this point, the Board finds that the service medical records, Reserve Component examinations, and the post-active duty medical records provide the most probative evidence of record and it is against finding continuity of symptomatology.  See Owens, supra.  

Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with right and left knee disorder as well as a stomach disorder including GERD in and since his separation from active duty in 1981, 40 years ago, despite the claims to the contrary.  See 38 U.S.C. § 101, 106, 1131; 38 C.F.R. § 3.303(b).

Furthermore, the Board finds that the record does not shows that the Veteran's post-service right and left knee disorder as well as a stomach disorder including GERD are due to his military service.  See 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  

In this regard, the Board notes that the Veteran was not provided a VA examination in connection with these claims.  However, the Board finds that the criteria to provide the Veteran with a VA examination to obtain etiology opinions have not been met because the record does not document his complaints, diagnoses, or treatment for the knee disorders during service or for almost three decades after service and the stomach disorder until two decades after service despite the abdominal/stomach pain while on active duty.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement).

The Board also finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused the current right and left knee disorder as well as a stomach disorder including GERD).  See Davidson, supra.  

It is vital for the Veteran to understand that the Board has taken his concerns seriously, however, there is now overwhelming medical evidence against these claims that the Board cannot ignore.  The service and post-service treatment records, as noted above, also have been found by the Board to provide highly probative evidence against these claims, beyond the medical opinions in this case that also provide evidence against these claims.  There is no basis to assume that obtaining a medical opinion in this case will provide a basis to grant the claims, in light of this record.

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's right and left knee disorder as well as a stomach disorder including GERD are not due to his military service.  See 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra.  

In this regard, the key question in this case is not if the Veteran had a disease or injury while on active duty or if the Veteran currently has right and left knee disorder as well as a stomach disorder including GERD.  The key issue is whether any disease or injury the Veteran had during active duty was at least as likely as not (a 50 percent or greater chance) the cause of the current problem.  The fact that he may, or may not, have had knee and stomach problems while on active duty does not always provide the basis to find that his current knee and stomach problems are the result of that disease or injury from 40 years ago.  Sometimes, in some cases, the best evidence provides evidence against such claims.  In this case, the Board finds that there is now significant evidence in this record, in both the service and post-service, that provides highly probative evidence against the claims that clearly outweigh all evidence that supports the claims.  See Owens, supra.

The Board next finds that the preponderance of the evidence shows that the Veteran's right and left knee disorder as well as a stomach disorder including GERD are not caused or aggravated by an already service-connected disability to include his back disability and the medications he takes to treat his service-connected disabilities.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.310; Also see Allen, supra; Wallin, supra; Ward, supra.

In this regard, the Board finds that the April 2018 VA examiners provided competent and credible medical opinions that the Veteran's bilateral knee disabilities and stomach disorders are not caused or aggravated by his service-connected disabilities, including his service-connected back disability and the medications he takes to treat his service-connected disabilities.  Moreover, the Board finds these opinions the most probative evidence of record because they were provided after a review of the record on appeal, supported with specific citations to, among other things, the appellant's competent and credible lay claims regarding observable symptomatology as well as the in-service and post-service medical records and controlling medical literature, and the opinions are supported by medical reasoning as well as not contradicted by any other medical evidence of record.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches....  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record); Colvin, supra.

The Board again finds that the Veteran is not competent to provide the missing nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused the current right and left knee disorder as well as a stomach disorder including GERD).  See Davidson, supra.  

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's right and left knee disorder as well as stomach disorder including GERD are not secondary to his already service-connected disabilities.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.310; Also see Allen, supra; Wallin, supra; Ward, supra.

In reaching the above conclusions, the Board considered the doctrine of reasonable doubt.  38 U.S.C. § 5107(b).  However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application.  See also, e.g., Ortiz, supra; Gilbert, supra.

The Temporary Total Disability Rating Claim

The Veteran is seeking a temporary total disability rating for the time he was hospitalized at VA from May 20, 2013, to June 27, 2013.

In this regard, a total disability rating will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days.  38 C.F.R. § 4.29.

Tellingly, a review of the record on appeal shows that the Veteran's hospitalization at the Dublin VA Medical Center from May 20, 2013, to June 27, 2013, was for a 45 day in-patient substance abuse program.  Moreover, while the records from this period of hospitalization shows that the Veteran received some counseling during his hospitalization, including for his service-connected depressive disorder, the undisputed purpose of this extended period of hospitalization was to treat his nonservice-connected substance abuse disorder. 

Therefore, the Board finds that the preponderance of the evidence of record shows that, while the Veteran was hospitalized in excess of 21 days, it also shows that this period of hospitalization was for his nonservice-connected substance abuse disorder and not his service-connected depressive disorder.  See Owens, supra.

Accordingly, the Board finds that the criteria for granting the Veteran a temporary total disability rating for the time he was hospitalized at a VA Medical Center from May 20, 2013, to June 27, 2013, have not been met and the claim is denied.  See 38 C.F.R. § 4.29.

Overall, the Board apologizes to the Veteran for the complexity of this case (many complex issues were raised in this case).  Overall, it is important for the Veteran to understand two key points:  (1) Not all evidence in this case supports the Veteran's current grants of several of his key claims (the Veteran's history of drug abuse appears to be a significant factor in the Veteran's employment history); and (2) the Veteran has been granted the benefit of the doubt in many of the prior claims granted by the VA.

REASONS FOR REMAND

Entitlement to increased ratings for a back disability is remanded.

As to the claims for increased ratings for a back disability, a review of the record on appeal does not reveal that the Veteran's VA examiners, including the most recent examiner in March 2019, provided an estimate as to the back's range of motion during a flare up to include whether his adverse symptomatology during a flare up equates to ankylosis.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Chavis v. McDonough, No. 18-2928 (2021) (holding that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis).

Therefore, the Board finds that a remand to provide the Veteran with an adequate VA examination is required.  See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

In this regard, the RO when again adjudicating the claim for increased ratings for the back disability should be mindful of the fact that the Court held that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date."  See Tatum, supra; see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms).

While the appeal is in remand status any outstanding VA and private treatment records should be obtained while the appeal is in remand status.  See 38 U.S.C. § 5103A(b).

Lastly, after undertaking the above development, the RO should provide the Veteran with a SSOC that considers all evidence added to the record since it issued the June 2018 SOC as well as notice of the amended musculoskeletal rating criteria.  See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued); Also see 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). 

Finally, in light of the grants in this case, the Veteran, in clear consultation with his representative, may wish to withdraw this claim (in writing please).

This issue is REMANDED for the following actions:

1. Obtain and associate with the claims file any outstanding VA treatment records.

2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records.  

If possible, the Veteran herself should submit and new pertinent evidence the Board/VA does not have (if any).

3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his back disability.  The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 

After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions:

(a)  The examiner should identify all back musculoskeletal and neurological pathology found to be present during the pendency of the appeal.

(b)  The examiner should conduct all indicated tests and studies, to include range of motion studies.  

(c) In order to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), the joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 

The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing. 

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

In other words, the examiner based on the results of the examination, a history taken from the Veteran, and the adverse back symptomatology documented in the appellant's treatment records should provide range of motion estimates taking into account the fact that the appellant's back "pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use, and that pain specifically caused increased functional loss." 

(d)  In order to comply with the Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner should also state whether the examination is taking place during a period of flare-up.  

If the examination is taking place during a flare-up, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up.

If the examination is NOT taking place during a flare-up, 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 back flexion, extension, side to side, and rotation caused by functional loss during a flare-up and after repeated use over time. 

Based on the above, the examiner should also provide an opinion as to whether the Veteran's lost motion after repetition and/or during a flare up equates to ankylosis.

(e)  The examiner should also state the number of weeks of incapacitating episodes caused by the back disability in each 12-month period during the pendency of the appeal. 

(f)  The examiner should state the nature, extent, and severity of any loss of sphincter and bladder control caused by the service-connected disability.

(g)  The examiner should state the nature, extent, and severity of any right and/or left leg radiculopathy.  

If the Veteran does not have radiculopathy in either lower extremity due to his back disability, the examiner must say so.

In providing the opinions, the examiner should consider the Veteran's competent lay claims regarding observable symptomatology.

If the examiner cannot provide any the above range of motion estimates 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).

If the examiner cannot provide any of the range of motion estimate without resorting to speculation because of a deficiency in the record or the examiner, all appropriate steps should be taken to correct the deficiency.  

The examination report must include a complete rationale for all opinions expressed.  

4. After undertaking the above development, the RO should issue the Veteran a SSOC that, among other things, considers all evidence added to the record since it issued the June 2018 SOC and provides the appellant with notice of the new musculoskeletal Diagnostic Codes.  See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021).

 

 

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N.T. Werner, 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.