Citation Nr: 1512448 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 12-33 698A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the thoracic spine. 2. Entitlement to service connection for scar on the left calf. 3. Entitlement to service connection for erectile dysfunction. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for a gastrointestinal disability, to include gastroenteritis. 6. Entitlement to service connection for temporomandibular joint dysfunction (TMJ). 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for chronic toenail fungus. 9. Entitlement to service connection for plantar fasciitis. 10. Entitlement to an initial evaluation in excess of 10 percent for adjustment disorder with anxiety and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from December 2006 to January 2011. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The case came to the Board from the Detroit, Michigan RO. In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's electronic ("Virtual VA" and Veterans Benefit Management System (VBMS)) file, as well as the evidence in his physical claims file. There are currently no records in the VBMS file. The issues of entitlement to service connection for chronic toenail fungus, and chronic plantar fasciitis and entitlement to an increased evaluation for adjustment disorder with anxiety and depression are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Degenerative joint disease of the thoracic spine was diagnosed within one year of the Veteran's separation from active service. 2. The Veteran's healed left calf scar is as likely as not related to active service. 3. The Veteran's favor, erectile dysfunction is as likely as not related to active service. 4. The Veteran does not have a current chronic right shoulder disorder that is related to his active service. 5. The Veteran has complaints of gastrointestinal discomfort, but no continuing gastrointestinal disorder was clinically established in service or on post-service VA examination. 6. TMJ was complained of in service on his application for benefits, and there is a current diagnosis of TMJ. 7. Tinnitus was diagnosed within one year of the Veteran's separation from active service. CONCLUSIONS OF LAW 1. Degenerative joint disease of the thoracic spine is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 2. Resolving reasonable doubt in the Veteran's favor, a healed left calf scar was incurred in active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 3. Resolving reasonable doubt in the Veteran's favor, erectile dysfunction was incurred in active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 4. A current chronic right shoulder disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 5. A chronic gastrointestinal disorder was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 6. Resolving reasonable doubt in the Veteran's favor, TMJ was incurred in active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 7. With resolution of reasonable doubt in the Veteran's favor, tinnitus is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2011 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in October 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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(d). Some chronic diseases, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Initially, the Board notes that the Veteran completed and signed his original application for compensation on his last day of active duty service. At that time, he claimed service connection for issues now on appeal. Thoracic Spine The Veteran underwent VA examination in July 2011 at which time x-rays showed findings of minimal marginal spur formation I the lower thoracic spine with impression of mild degenerative discogenic spondylosis of the lower thoracic spine. The VA examiner originally diagnosed the Veteran as having chronic thoracic strain but changed his diagnosis to degenerative joint disease of the thoracic spine. Service connection may be granted for arthritis if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. There is evidence of residuals of back pain; this finding satisfies the requirement that arthritis be manifested to a degree of 10 percent. The intent of the rating schedule is to recognize painful motion with a joint as productive of disability, and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2014). The minimum compensable rating for arthritis manifesting painful motion limited to a noncompensable degree is 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2014). Thus, service connection for degenerative joint disease of the thoracic spine on a presumptive basis is warranted. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Left Calf Scar At the July 2011 VA examination, the Veteran reported a scar of the left calf caused by an injury in 2009. Physical examination demonstrated a 1-centimeter by 1-centimeter linear scar. The Veteran was diagnosed as having scar on the left calf noted to be healed. No left calf scar was noted on entrance into service; and there is no medical evidence of a left calf scar on discharge from service. However, the Veteran is competent to report that an injury caused the left calf scar in 2009, see Layno v. Brown, 6 Vet. App. 465 (1994), and there is no evidence to the contrary in the record. As there was a healed left calf scar six months after he left service, by resolving all doubt in the Veteran's favor, service connection for a healed left calf scar is warranted. Erectile Dysfunction At the June 2011 VA examination, the Veteran reported that vaginal penetration was not possible, that ejaculation was absent, and that the condition began in 2009. After physical examination, the Veteran was diagnosed as having erectile dysfunction. As the Veteran noted erectile dysfunction on his last day of service, and was concerned about "ED" on his last examination, and as the Veteran is competent to give evidence that he has had loss of erectile power since 2009, by resolving all doubt in the Veteran's favor, service connection for chronic erectile dysfunction is warranted. Right Shoulder To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service treatment records indicate that the Veteran reported in November 2010 with complaints of right shoulder pain for one to two months. There was gradual onset without trauma with pain generalized to posterior shoulder and posterior trapezius area without radiation or numbness/tingling. After physical examination, the Veteran was diagnosed as having shoulder strain and placed on light duty for two weeks. Despite findings in right shoulder strain in service, the Board cannot conclude a "chronic" right shoulder condition was incurred during service. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." At the July 2011 VA examination, the Veteran reported right shoulder weakness, giving way, lack of endurance and pain for three years. Physical examination of the right upper extremity demonstrated no ulcer, stasis pigmentation, eczema, or edema. Range of motion of the right shoulder was within normal limits. X-ray findings of the right shoulder were within normal limits. The examiner noted that there was no diagnosis because there was no pathology to render a diagnosis. The Board notes that the Veteran has submitted no medical evidence of a current, chronic right shoulder disorder. The Board acknowledges the Veteran's assertions that he has experienced right shoulder weakness, giving way, lack of endurance, and pain for three years. However, shoulder weakness, giving way, lack of endurance, and pain are just reported symptomatology. Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability..."); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The CAVC held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.) In the absence of competent evidence which suggests that the Veteran's right shoulder symptoms constitute a chronic disability, the Board has no basis on which to consider right shoulder weakness, giving way, lack of endurance, and pain as anything more than medical findings or symptoms. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, diagnosis and etiology, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Absent a showing of a current chronic right shoulder disability which could be related to service, entitlement to service connection for right shoulder weakness, giving way, lack of endurance, and pain must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Gastrointestinal Disorder Similarly, service connection is denied for a chronic gastrointestinal disorder as it has not been clinically established. During service the Veteran complained, at various times of dyspepsia. Gastrointestinal testing in service, however, revealed no clinical confirmation. Moreover, it is noted that during and after service the Veteran gained weight and has not otherwise been shown to have malnutrition or other findings indicative of chronic gastrointestinal impairment. On the Report of Medical History completed by the Veteran in November 2011 he denied ever having frequent indigestion or heartburn. Moreover, on the first post-service examination the complaints were noted and clinical findings revealed no abnormality. As such, while there are complaints recorded, in the absence of a clinical abnormality, there is no gastrointestinal disorder to service connect. TMJ At the June 2011 VA examination, the Veteran reported that the condition began when his jaw joints started popping and clicking and that the initial signs and symptoms were pain in the jaw joints and occasional difficulty opening his mouth. Physical examination demonstrated deviation of the left condyle upon opening and closing and crepitus in the jaw joints upon opening. The Veteran was diagnosed as having TMJ. TMJ was not noted on entrance into service; and there is no indication that the Veteran had TMJ when he left service. As the Veteran noted TMJ on his last day of service, by resolving all doubt in the Veteran's favor, service connection for TMJ is warranted. Tinnitus At the June 2011 VA examination, the Veteran reported episodes of ringing type noise from the ears for six months. Physical examination demonstrated normal ears and hearing acuity. The Veteran was diagnosed as having tinnitus. Service connection may be granted for tinnitus if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. There is evidence of tinnitus and this finding satisfies the requirement that tinnitus be manifested to a degree of 10 percent. The minimum rating for tinnitus is 10 percent. 38 C.F.R. § 4.88a, Diagnostic Code 6260 (2014). Thus, service connection for tinnitus a presumptive basis is warranted. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. ORDER Entitlement to service connection for degenerative joint disease of the thoracic spine is granted. Entitlement to service connection for scar on the left calf is granted. Entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a chronic gastrointestinal disorder is denied. Entitlement to service connection for TMJ is granted. Entitlement to service connection for tinnitus is granted. REMAND With respect to the issues of entitlement to service connection for chronic toenail fungus and chronic plantar fasciitis, although the Veteran underwent VA examination in July 2011, the examiner did not note the condition of the Veteran's skin and nails. As such, it is the Board's opinion that a medical opinion in conjunction with the review of the entire record and examination of the Veteran is warranted to indicate whether or not he has chronic toenail fungus and/or chronic plantar fasciitis related to his active duty service. With respect to the issue of entitlement to an increased evaluation for adjustment disorder with anxiety and depression, as it has been nearly four years since the Veteran underwent VA examination for his service-connected psychiatric disability, the evidence of record is clearly stale. The Court has impressed on VA on many occasions the necessity of obtaining a recent VA examination. See, e.g., Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"]. Thus, the Veteran should be scheduled to undergo an appropriate VA examination to determine the current severity of his adjustment disorder with mixed anxiety and depressed mood. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his toenail fungus, plantar fasciitis, and adjustment disorder with mixed anxiety and depressed mood that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. The Veteran should be afforded a VA foot examination. The examiner is to be provided access to the claims folder, Virtual VA, and VBMS (if any records are added to it. The examiner must specify in the report that the claims file and Virtual VA and VBMS records have been reviewed. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should identify all current chronic toenail disorders as well as determine if the Veteran has chronic plantar fasciitis and provide an opinion as to whether it is at least as likely as not that any such disorder is related in any way to the Veteran's active duty service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. The Veteran should be afforded a VA psychiatric examination. The examiner is to be provided access to the claims folder, Virtual VA, and VBMS (if any records are added to it. The examiner must specify in the report that the claims file and Virtual VA and VBMS records have been reviewed. In accordance with the latest worksheets for rating mental disorders, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his adjustment disorder with mixed anxiety and depressed mood. A complete rationale for any opinions expressed must be provided. 4. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the corrective procedures should be implemented at once. 6. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs