Citation Nr: 0811884 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-26 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for high blood pressure (hypertension). 2. Entitlement to service connection for skin rash. 3. Entitlement to service connection for a sleep disorder. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD). 5. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities. 6. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities. 7. Entitlement to service connection for degenerative joint disease, bilateral knees. 8. Entitlement to service connection for degenerative joint disease, bilateral ankles. 9. Entitlement to service connection for a bilateral hip disorder. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1967 to March 1971. This appeal is before the Board of Veterans' Appeals (Board) from December 2004 and December 2006 rating decisions of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The December 2004 rating decision, in part, increased the rating of the veteran's service connected low back disability from 0 percent to 10 percent. The veteran appealed that rating, specifically indicating in his substantive appeal that he believed a 40 percent rating "would be fair". A February 2006 rating decision then granted a 40 percent rating, effective April 19, 2004 (the date of the claim for increase). As this action granted the specific benefit sought with respect to the low back disability rating, such matter is not before the Board. FINDINGS OF FACT 1. Hypertension was not manifested during the veteran's service or in the first postservice year, and is not shown to be related to injury or disease in service. 2. It is not shown that any current skin pathology is related to the single instance of skin rash noted in service, or is otherwise related to the veteran's service. 3. Sleep apnea was not manifested in service, but was initially demonstrated years after service; a preponderance of the evidence is against a finding that the veteran's current sleep disorder, apnea, is related to his military service. 4. The veteran did not engage in combat, and does not have a diagnosis of PTSD. 5. The veteran has radiculopathy associated with his service connected low back disability; he is not shown to have ever had peripheral neuropathy of either upper or lower extremity. 6. Arthritis of either knee was not manifested in service or in the first postservice year, and any current left or right knee arthritis is not shown to be etiologically related to the veteran's service or to a service connected disability. 7. Arthritis of the ankles was not manifested in service or in the first postservice year, and any current left or right ankle arthritis is not shown to be etiologically related to the veteran's service or to a service connected disability. 8. The veteran is not shown to have a chronic disability of either hip. 9. The veteran's only service-connected disability, lumbar spine degenerative disc disease with radiculopathy rated 40 percent, is not shown to be of such nature and severity as to preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Service connection for high blood pressure/hypertension is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 2. Service connection for a skin disorder is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 3. Service connection for a sleep disorder is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 4. Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 5. Service connection for peripheral neuropathy of the upper and/or lower extremities is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 6. Service connection for arthritis of the knees, including as secondary to service connected low back disability, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). 7. Service connection for arthritis of the ankles, including as secondary to service connection low back disability, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). 8. Service connection for a bilateral hip disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 9. The schedular requirements for TDIU are not met, and TDIU is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.1, 4.2, 4.10, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of the VCAA applied to all 5 elements of a service connection claim (i.e., to include the rating assigned and the effective date of award). Letters dated in May 2004, June 2005, August 2005, and April 2006, informed the veteran of the evidence and information necessary to substantiate the claims, the information required of him to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. A July 2007 letter provided additional notice, to include regarding disability ratings and effective dates of awards. See Dingess, supra. As this decision does not address any effective date or disability rating matters, the veteran is not prejudiced by any timing defect as to this notice. Regarding VA's duty to assist, the record includes the veteran's service medical records (SMRs), as well as relevant private and VA medical records. VA has obtained all pertinent/identified records that could be obtained, and all evidence constructively of record has been secured. The veteran was afforded VA examinations in December 2005 to address his peripheral neuropathy, knees, ankles, hips, and TDIU claims. He has not been provided with a VA examination to address his blood pressure, skin disease, sleep apnea, or PTSD claims; however review of the record indicates such examination are not necessary. The record does not show inservice evidence of these disabilities; there is no true indication that any might be related to service more than three decades earlier. See Charles v. Principi, 16 Vet. App. 370 (2002). Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 USCA 5103A(a)(2). Accordingly, the Board finds that VA has satisfied its duties to notify and to assist pursuant to the VCAA. It is not prejudicial to the appellant for the Board to proceed to decide the issues addressed on the merits. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). II. Service Connection Claims Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Disability that is proximately due to or the result of a service-connected disease or injury shall [also] be service connected. 38 C.F.R. § 3.310(a). Where a service-connected disability aggravates a nonservice- connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain chronic disabilities, including hypertension and arthritis, may be presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail in a claim seeking service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the current disability and the disease or injury in service. See Hickson v. West, 12 Vet. App. 247 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Hypertension The veteran's service enlistment examination in June 1967 noted blood pressure of 110/74. There were no references to hypertension or high blood pressure in his SMRs. His service separation examination in December 1970 found blood pressure to be 114/70. Heart examination was normal. A February 1997 private treatment record noted blood pressure of 160/98. In May 1997, blood pressure of 160/100 was recorded. In January 2002, blood pressure of 130/90 was noted. A February 2004 VA treatment record noted hypertension. The veteran was hospitalized in December 2004 and January 2005 with accelerated hypertension status post cardiac arrest. Hypertensive heart disease was also noted. Subsequent records dated in 2005 and 2006 continued to show diagnoses of hypertension. Blood pressure readings during service were within normal limits. The first postservice evidence of high blood pressure/hypertension is in February 1997, more than 25 years after the veteran's separation from service. Such a lengthy interval of time between service and the initial postservice clinical manifestation of a disability for which service connection is sought is, of itself, a factor weighing against a finding that a disability is service connected. Accordingly, service connection for the veteran's hypertension on a direct basis, i.e., that it was incurred or aggravated in service is not warranted. There is no basis for service-connecting hypertension on a presumptive basis, as it was not manifested in the first postservice year. There is no medical opinion of record that would connect the veteran's current hypertension with any event of his active service. Hs own contentions in this regard are not competent evidence, as he is a layperson, untrained in determining medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Board has considered the doctrine of affording the veteran the benefit of any existing doubt; however, the preponderance of the evidence is against this claim. Hence, the claim must be denied. Skin Rash The veteran's SMRs show that in May 1970 he was given medication for treatment of a rash; the record does specify the anatomical location of the rash. There were no further complaints or treatment related to a skin problem noted in the SMRs. On service separation examination in December 1970, skin evaluation was normal. A May 1999 private treatment record noted papular rash on the arms, trunk, scrotum, and head. The veteran reported that this rash had developed days earlier. He denied any previous history of rash. The single instance of skin rash in service apparently resolved without further problems, as skin evaluation was normal on service separation examination. The single post- service medical treatment record noting a skin problem was dated in May 1999; the veteran denied any previous skin problems and indicated that the current rash had been present for days only. Accordingly, service connection for a skin disorder on the basis that it became manifest in service and persisted is not warranted. The veteran may still establish service connection for a skin disability by competent evidence showing such disability is related to the complaint in service. However, apart from the single episode of rash in May 1999, the record does not show any current skin pathology. Furthermore, no medical professional has attributed any skin pathology to the complaint noted in service, or otherwise to service. As the veteran is a layperson, his own opinion is not competent evidence to establish that any current skin disorder is related to his service. See Espiritu, supra. In light of the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Accordingly, it must be denied. Sleep Disorder The veteran's SMRs contain no mention of sleep problems. On a private sleep study in January 2005 it was noted that the veteran took multiple medications. Severe obstructive sleep apnea with significant oxygen desaturation was the impression of the physicians conducting the study. It was recommended that the veteran lose weight and avoid the use of central nervous system suppressive drugs or alcohol in the evening. The medical evidence of record shows that sleep apnea has been diagnosed. However, the first medical evidence of such disability is more than 30 years after service. The evidence of record does not include any medical opinion that the veteran's current sleep apnea is/may be related to his service, and objective evidence of record does not suggest that the sleep apnea might be related to service. As a layperson, the veteran is incompetent to establish medical nexus by his own opinion. In light of the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Accordingly, the claim must be denied. PTSD To establish service connection for PTSD, there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). The veteran's service records do not show that he engaged in combat; he does not claim combat experience. Consequently, to establish service connection for PTSD, he must have credible supporting evidence that an alleged stressor event in service on which a diagnosis of PTSD is based actually occurred. However, there is another threshold requirement, i.e., there must be competent evidence (a medical diagnosis) that the veteran actually has the disability for which service connection is sought, PTSD. In the absence of proof of a present disability, there is no valid claim [of service connection]. See Brammer v. Derwinski, 3 Vet. App. 223,225 (1992). The veteran submitted a statement in August 2006 on which he reported that he aided in removing bodies from a plane crash at Eglin Air Force Base, and that while serving in Thailand planes would at times return from bombing mission with bombs still attached, resulting in base alerts. However, there is no evidence of record showing a diagnosis of PTSD. A VA PTSD screen in March 2005 did not find evidence of PTSD. As there is no competent evidence of a diagnosis of PTSD, the veteran's claim of service connection for PTSD must be denied. See Brammer, supra. Peripheral Neuropathy, Upper and Lower Extremities The veteran's SMRs do not show treatment or complaints of peripheral neuropathy of either upper or lower extremity. His service separation examination noted normal neurologic findings. On VA examination in December 2005, the examiner noted degenerative disc disease of the lumbar spine with evidence of radiculopathy. (The Board notes that the veteran's service connected low back disability is characterized as degenerative disc disease, lumbar spine, with radiculopathy. The 40 percent rating assigned compensates him for radiculopathy.) There is no medical evidence of record showing peripheral neuropathy of either upper or lower extremity. As there is no competent evidence of a diagnosis of peripheral neuropathy of the upper or lower extremities, the veteran's claims of service connection for those disabilities must be denied. See Brammer, supra. Arthritis, Ankles and Knees The veteran's SMRs do not show any complaints or findings related to either ankle or either knee. His service separation examination noted normal lower extremities and musculoskeletal examinations. A June 2003 private treatment record notes the veteran had twisted his knee (it does not specify which knee) one week earlier while getting on his lawn mower. Examination showed the ligaments to be intact; there was mild swelling. Two weeks later the knee was described as "much improved," with only minimal pain. VA examination in December 2005 found degenerative joint disease of both knees and both ankles. The examiner reviewed the claims folder and opined that it was not likely that the degenerative joint disease of the bilateral knees or ankles was secondary to the veteran's service connected low back disability, as there was "no specific rationale" for the back condition to affect the knees or ankles. Upon review of the evidence of record, the Board finds that service connection for arthritis of the ankles and knees is not warranted. As was previously noted, the veteran's SMRs are negative for such disability. There is no postservice medical evidence of arthritis of either ankle or knee until 2005; more than 30 years postservice. Consequently, chronic disease presumptions for arthritis of the ankles and knees do not apply. Furthermore, the veteran's bilateral ankle and knee arthritis has never been linked to his military service by any medical evidence. His own opinion in this matter is not competent evidence, as he is a layperson. See Espiritu, supra. The veteran proposes a secondary theory of service connection (under 38 C.F.R. § 3.310). He alleges that his ankle and knee disabilities resulted from his service connected low back condition. Three threshold requirements must be met in order to establish secondary service connection. First, there must be competent evidence (a medical diagnosis) of current disability. This requirement is met as arthritis of the knees and ankles is diagnosed. The further two requirements that must be satisfied are: Evidence of a service-connected disability and competent evidence of a nexus between the service- connected disability and the disability for which secondary service connection is claimed. As the veteran has established service-connection for low back disability, what remains to be shown is that the knee and/or ankle arthritis for which service connection is sought was caused or aggravated by his service-connected low back disorder. The only medical evidence of record addressing this question is the opinion of the December 2005 VA examiner. His conclusion that it was not likely that the degenerative joint disease of the bilateral knees or ankles was secondary to the veteran's service connected low back disability, as there was "no specific rationale" for the back condition to affect the knees or ankles, encompasses both direct causation and aggravation. There is no other medical opinion of record to contradict his conclusion, and the Board finds the opinion probative and persuasive. Thus secondary service connection for degenerative joint disease of the knees or ankles is likewise not warranted. The Board has considered the benefit of the doubt doctrine. As the preponderance of the evidence is against the claims, that doctrine does not apply. Hip Disorder The veteran's SMRs do not show any complaints or findings related to either hip. On service separation examination, lower extremity and musculoskeletal evaluations were normal. On VA examination in December 2005, it was noted that the veteran described radicular pain from his back traveling down both legs. He did not specifically describe a separate hip disability, and no such separate hip disability entity was found on X-ray or clinical evaluation. The examiner concluded that "there is not a specific bilateral hip condition found." As there is no competent evidence of a diagnosis of a right or left hip disability, the threshold requirement for establishing service connection for such disability is not met, and veteran's claim of service connection for such disability must be denied. See Brammer, supra. III. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra- schedular consideration. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the veteran's polymyositis any other nonservice- connected disabilities on his ability to function. The veteran has one service-connected disability: degenerative disc disease, lumbar spine, with radiculopathy, rated 40 percent. Thus, the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. The analysis progresses to the "subjective standard" under 38 C.F.R. § 4.16(b). The Board must determine whether the veteran is unemployable due to his service-connected disability regardless of its rating. This regulation provides that the established VA policy is that "all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled." However, in these cases, in order for the veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some circumstance which places the claimant in a different position from other veterans with the same rating. In Floyd v. Brown, 9 Vet. App. 95 (1996), the Court held that the Board may not assign an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1) in the first instance, because § 3.321(b)(1) establishes a specific procedure requiring all claims under that provision to be referred to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for initial decision. However, the Court held that the Board may be required to consider the applicability of 38 C.F.R. § 3.321(b)(1) when the issue has been raised before the Board. The Board finds that the evidence does not show that the disability picture of veteran's sole service-connected disability is so exceptional or unusual as to warrant referral to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for extraschedular consideration. The record does not show frequent periods of hospitalizations in fact, it does not show any hospitalization for back problems during the appeal period. Furthermore, the evidence does not support a finding that the veteran is demonstrably unable to obtain or maintain employment due to his service-connected back disorder. Despite a request from the RO that he do so, the veteran did not complete the VA application form for individual unemployability. Thus, his educational background and complete work history are not documented in the record. However, on VA examination in December 2005, he reported that he had retired in September 2003 after 32 years of employment with a telephone company. He indicated that he would like to have worked for three more years, but retired due to his back disability. He reported that he did yard work and repairs at home, but rested frequently. The examiner opined that "the veteran's low back condition would prevent heavy, strenuous, and physical type labor, but would not exclude sedentary type labor." There is no objective evidence that, due to his service connected back disability, the veteran is unemployable. There is nothing in the record to suggest that he would be incapable of "sedentary type labor". Consequently, the Board finds that the veteran is not totally disabled for any substantially gainful employment due to his low back disorder, his only service-connected disability. Accordingly, the preponderance of the evidence is against his claim for TDIU. ORDER Service connection for hypertension is denied. Service connection for skin rash is denied. Service connection for a sleep disorder is denied. Service connection for PTSD is denied. Service connection for peripheral neuropathy, bilateral upper extremities, is denied. Service connection for peripheral neuropathy, bilateral lower extremities, is denied. Service connection for degenerative joint disease, bilateral knees, is denied. Service connection for degenerative joint disease, bilateral ankles, is denied. Service connection for a bilateral hip disorder is denied. Entitlement to TDIU is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs