Citation Nr: 1325389 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-06 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to an initial rating greater than 10 percent for degenerative disc disease of the cervical spine. 3. Entitlement to an initial rating greater than 10 percent for degenerative joint disease of the right ankle. 4. Entitlement to an initial rating greater than 10 percent for right shoulder tendonitis. 5. Entitlement to an initial compensable rating for left shoulder tendonitis. 6. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD). 7. Entitlement to an initial compensable rating for left testicle epididymitis. 8. Entitlement to an initial compensable rating for allergic rhinitis and sinusitis. 9. Entitlement to an initial compensable rating for costochondritis. 10. Entitlement to an initial compensable rating for left knee patellofemoral pain syndrome. 11. Entitlement to an initial compensable rating for right knee patellofemoral pain syndrome. 12. Entitlement to an initial compensable rating for left ankle tendonitis. 13. Entitlement to an initial compensable rating for kidney stones. 14. Entitlement to an initial compensable rating for bilateral hearing loss. 15. Entitlement to service connection for disability manifested by chronic cough. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from December 1986 to January 2008. These matters were received by the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. They are on appeal from a February 2008 rating decision. In May 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is included in the claims file. Following the RO's most recent adjudication of the Veteran's claim in a June 2009 supplemental statement of the case, additional medical evidence was received by VA, both prior to and subsequent to the RO's certification of the appeal to the Board. However, as the only remaining benefit sought on appeal is being granted, the evidence need not be referred to the RO for initial review. See 38 C.F.R. §§ 19.31(b), 19.37(a), 20.1304(c) (2012). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In a statement received in May 2013, the Veteran's representative raised the issues of entitlement to service connection for posttraumatic stress disorder, traumatic brain injury, and headaches. Also, a decision was made at the hearing that the Veteran would withdraw the above claims for increased ratings from his appeal, but then file new claims. Therefore, the May 2013 statement also raises claims for increased ratings for the lumbar spine, cervical spine, right ankle, right shoulder, left shoulder, GERD, left testicle epididymitis, allergic rhinitis and sinusitis, costochondritis, left knee, right knee, left ankle, kidney stones, and bilateral hearing loss. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran withdrew on the record, and in a May 2013 written statement, his substantive appeal concerning the issues of entitlement to initial ratings greater than 10 percent for degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, degenerative joint disease of the right ankle, and right shoulder tendonitis, and initial compensable ratings for left shoulder tendonitis, GERD, left testicle epididymitis, allergic rhinitis and sinusitis, costochondritis, left knee patellofemoral pain syndrome, right knee patellofemoral pain syndrome, left ankle tendonitis, kidney stones, and bilateral hearing loss. 2. Bronchiectasis, manifested by chronic cough, is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran concerning the issues of entitlement to initial ratings greater than 10 percent for degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, degenerative joint disease of the right ankle, and right shoulder tendonitis, and initial compensable ratings for left shoulder tendonitis, GERD, left testicle epididymitis, allergic rhinitis and sinusitis, costochondritis, left knee patellofemoral pain syndrome, right knee patellofemoral pain syndrome, left ankle tendonitis, kidney stones, and bilateral hearing loss, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for service connection for bronchiectasis have been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, under 38 U.S.C.A. § 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 on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, the Veteran withdrew on the record during his May 2013 hearing, and in a May 2013 written statement from his representative, his substantive appeal concerning the claims for initial ratings greater than 10 percent for degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, degenerative joint disease of the right ankle, and right shoulder tendonitis, and initial compensable ratings for left shoulder tendonitis, GERD, left testicle epididymitis, allergic rhinitis and sinusitis, costochondritis, left knee patellofemoral pain syndrome, right knee patellofemoral pain syndrome, left ankle tendonitis, kidney stones, and bilateral hearing loss. As there remain no allegations of errors of fact or law for appellate consideration regarding these claims, the Board does not have jurisdiction to review them, and they are dismissed. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The disability at issue in this case is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology are not considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period are considered chronic. The 6-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in his testimony during the May 2013 Board hearing, the Veteran asserts that he has a persistent cough that began during his service in Desert Storm between 1990 and 1991, and that he has been diagnosed as having bronchiectasis. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for bronchiectasis must be granted. The Veteran's service personnel records reflect that he served in the Southwest Asia theater of operations during the Persian Gulf War from August 1990 to April 1991. Service treatment records document years of the Veteran complaining of a persistent cough. In March 1992 the Veteran was treated for cough and congestion, in February 1996 he complained of persistent cough, and in April and May 1997 he was treated for a diagnosis of persistent cough. In September 2002 the Veteran was treated for complaints of persistent cough that he reported had been present for the last 10 years, and a mild, infrequent cough was noted on examination. He was treated for chronic cough in November 2005. In September 2006 the Veteran was treated for persisting dry cough, and chest X-rays showed no evidence of active pulmonary disease or any significant finding. In January and February 2007 the Veteran was again treated for persisting dry cough, which he reported experiencing since Desert Storm in 1991. A March 2007 hospital record reflects a diagnosis of chronic cough/bronchitis, and medication of Entex, Albuterol, and Afrin. A July 2007 X-ray again revealed no acute pulmonary disease or interval change, and in July 2007 the Veteran was assessed as having cough due to allergies. The report of a November 2007 VA examination reflects that the Veteran had a normal examination of the chest, and there was noted not to have been any breathing problems. However, it was noted that, during the examination, there was a presence of a dry type of cough, but no hematemesis or shortness of breath. A March 2009 report of a computed tomography (CT) scan reflects findings of mild diffuse bilateral bronchiectasis confirmed with areas of basilar scarring. The impression was bilateral, diffuse bronchiectasis, mild. A report dated in April 2009 from the Veteran's private physician, Dr. S.M., reflects that the Veteran reported that ever since his tour of duty in Desert Storm in the early 1990s, he had had a chronic dry cough not associated with any patterns. It was noted that the Veteran had no history of pulmonary disease, but that a recent CT scan showed mild bilateral diffuse bronchiectasis. The impression was chronic cough, which appeared to be related to bronchiectasis seen on the CT scan, etiology unclear, but query possible exposure to toxic chemicals, airway irritants, etc., in Desert Storm. A February 2010 treatment record from Dr. S.M. reflects that the Veteran had had increasing cough with mucus production recently. On examination, his lungs were clear, and the impression was bronchiectasis with exacerbation. Given the above, service connection for bronchiectasis manifested by persistent cough is warranted. The Veteran's testimony and service and post-service treatment records reflect a persistent cough for years during service. Given the consistent and repeated reports of the Veteran through the years in service, as well as his service in the Persian Gulf War from August 1990 to April 1991, the Board finds his assertions that his cough began during such service in the Persian Gulf to be credible. The competent and probative medical evidence of Dr. S.M. reflects that the Veteran has a current diagnosis of bronchiectasis that might be related to exposure to irritants during service in the Persian Gulf, and that his persistent cough problems are likely related to such bronchiectasis. There is no competent evidence contradicting Dr. S.M.'s assessments. Also, while the Veteran was not found to have had any bronchiectasis in service, service treatment records reflect only chest X-rays, and bronchiectasis was revealed only on CT scan after service. Moreover, the Veteran's persistent cough, existing for years in service, has been related by the competent medical evidence to his current diagnosis of bronchiectasis. Resolving reasonable doubt in the Veteran's favor, the Board finds that bronchiectasis, manifested by chronic cough, is etiologically related to the Veteran's service. Accordingly, the Board finds that service connection for bronchiectasis must be granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER The issues of entitlement to initial ratings greater than 10 percent for degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, degenerative joint disease of the right ankle, and right shoulder tendonitis, and initial compensable ratings for left shoulder tendonitis, GERD, left testicle epididymitis, allergic rhinitis and sinusitis, costochondritis, left knee patellofemoral pain syndrome, right knee patellofemoral pain syndrome, left ankle tendonitis, kidney stones, and bilateral hearing loss, are dismissed. Service connection for bronchiectasis is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs