Citation Nr: 1608543	
Decision Date: 03/03/16    Archive Date: 03/09/16

DOCKET NO.  13-25 970	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to a rating in excess of 10 percent for hypertension with headaches. 

2. Entitlement to service connection for dyslipidemia and hyperlipidemia, to include as secondary to service-connected hypertension with headaches.

3. Entitlement to service connection for liver pain with abnormal urinalysis, to include as secondary to service-connected hypertension with headaches.

4. Entitlement to service connection for bilateral hearing loss.

5. Entitlement to service connection for heart disease, to include as secondary to service-connected hypertension with headaches.

6. Entitlement to service connection for arrhythmias, to include as secondary to service-connected hypertension with headaches.

7. Entitlement to service connection for laceration of the 5th digit right hand with scarring.
8. Entitlement to service connection for skin disease, to include chronic pustules of face and neck with scarring/pseudofolliculitis barbae, hyperpigmented lesions, and pruritic keloid lichen planus.

9. Entitlement to service connection for acid reflux/gastroesophageal reflux disease (GERD), to include as secondary to service-connected patellofemoral pain syndrome of the right and left knees.

10. Entitlement to service connection for a right elbow injury.

11. Entitlement to service connection for a back condition, to include muscle spasms, aching, bulging disc, and chronic back pain.

12. Entitlement to service connection for cervical spine arthritis.

13. Entitlement to service connection for a bilateral shoulder condition.

14. Entitlement to service connection for right ankle tendonitis, to include as secondary to service-connected patellofemoral pain syndrome of the right and left knees.

15. Entitlement to service connection for restless leg syndrome.

16. Entitlement to service connection for a foot condition, to include bunions, hallux valgus, and hammertoes.

17. Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension with headaches.

18. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), readjustment/adjustment disorder with mixed anxiety, and depressive mood congruent.

19. Entitlement to service connection for narcolepsy, to include as secondary to an acquired psychiatric disorder and/or sleep apnea.

20. Entitlement to service connection for a genitourinary disorder, to include epididymal cyst, spermatocele, left scrotal mass, and urinary incontinence.  

21.  Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected hypertension with headaches.

22. Entitlement to service connection for diabetes mellitus, Type II, to include as secondary to service-connected hypertension with headaches.

23. Entitlement to service connection for migraine headaches.

24. Entitlement to service connection for mild amblyopia/sensitivity to light, to include as secondary to migraine headaches and/or service-connected hypertension with headaches.

25. Entitlement to service connection for a bilateral knee disability other than patellofemoral pain syndrome of the right and left knees, to include bilateral knee tendonitis, bilateral knee arthritis, degenerative joint disease, osteoarthritis, bursitis, and arthralgia.

26. Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome of the right knee.

27. Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome of the left knee.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission

WITNESSES AT HEARING ON APPEAL

Veteran & Spouse


ATTORNEY FOR THE BOARD

A. Ishizawar, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from October 1998 to September 2001.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO).  

In November 2015, a videoconference hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.  At the videoconference hearing, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) review.  38 C.F.R. § 20.1304 (2015).  He also sought, and was granted, a 60-day abeyance period for the submission of additional evidence.  38 C.F.R. § 20.709 (2015).  On multiple occasions in November 2015 and January 2016, the Veteran submitted additional evidence with a waiver of initial AOJ review.

At the November 2015 videoconference hearing, the Veteran and his representative also raised the issue of entitlement to service connection for tinnitus.  It was the representative's explanation that the Veteran had been under the impression that his claim for service connection for bilateral hearing loss included a claim for tinnitus; he was not aware that it was a separate disability.  See November 2015 videoconference hearing transcript, pp. 86-87.  The issue of entitlement to service connection for tinnitus has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015). 

The issues of entitlement to service connection for dyslipidemia and hyperlipidemia, liver pain with abnormal urinalysis, bilateral hearing loss, heart disease, and arrhythmias, and entitlement to an increased rating for hypertension with headaches, are decided herein.  The remaining issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. On November 4, 2015, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he intended to withdraw his appeal seeking a rating in excess of 10 percent for hypertension with headaches; there is no question of fact or law remaining before the Board in that matter.

2. The Veteran's dyslipidemia and hyperlipidemia are tantamount to laboratory test findings and, by themselves, do not qualify as disabilities for VA compensation purposes.  

3. The Veteran's liver pain with abnormal urinalysis is tantamount to a laboratory test finding and, by itself, does not qualify as a disability for VA compensation purposes; the evidence of record does not show that the Veteran has, at any point during the appeal period, had a current diagnosis of a liver disability.

4. The evidence of record does not show that the Veteran has, at any point during the appeal period, had a current diagnosis of a bilateral hearing loss disability for VA purposes.

5. The evidence of record does not show that the Veteran has, at any point during the appeal period, had a current diagnosis of heart disease.

6. The evidence of record does not show that the Veteran has, at any point during the appeal period, had a current diagnosis of arrhythmias.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal in the matter of entitlement to a rating in excess of 10 percent for hypertension with headaches, have been met; the Board has no further jurisdiction in this matter.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015).

2. Service connection for dyslipidemia and hyperlipidemia is not warranted.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

3. Service connection for liver pain with abnormal urinalysis is not warranted.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

4. Service connection for bilateral hearing loss disability is not warranted.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015).

5. Service connection for heart disease is not warranted.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).

6. Service connection for arrhythmias is not warranted.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions.  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) (2015).

In particular, with respect to the Veteran's claim for an increased rating for hypertension with headaches, given his expression of intent to withdraw his appeal in that matter, further discussion of the impact of VA's duties to notify and assist on the matter is not necessary.  

As for the Veteran's claims of service connection for dyslipidemia and hyperlipidemia, liver pain with abnormal urinalysis, bilateral hearing loss, heart disease, and arrhythmias, he was advised of VA's duties to notify and assist in the development of these claims prior to their initial adjudication.  In particular, the Veteran was provided a letter in April 2010, which explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  This letter also informed him of disability rating and effective date criteria.  The Veteran has had ample opportunity to respond/supplement the record and neither he nor his representative has alleged that notice in this case was less than adequate.

The Veteran's service treatment records (STRs), service personnel records, and pertinent postservice treatment records have been secured and associated with the claims file.  His statements in support of the claims are also of record.  After a careful review of such statements, the Board has concluded that no available, pertinent evidence has been identified that remains outstanding.  In this regard, the Board acknowledges that the below remand includes instructions for the development of additional records.  However, as will be explained in greater detail below, the records being requested have been identified as being relevant specifically to the issues being remanded below.  Therefore, it is not anticipated that any records obtained as a result of the below remand will have bearing on the issues being decided herein.

Also, the Veteran was afforded a VA audiological examination in July 2013, with an addendum opinion obtained in August 2013, to address his claim for service connection for bilateral hearing loss.  The Board finds this examination and addendum opinion to be adequate because it was conducted in accordance with the requirements outlined in 38 C.F.R. § 4.85(a), for evaluating hearing impairment for VA purposes.  In finding the July 2013 VA audiological evaluation to be adequate, the Board acknowledges that at the November 2015 videoconference hearing, the Veteran's representative argued that the examination was inadequate because the examiner did not review any medical records.  See November 2015 videoconference hearing transcript, p. 89.  However, a review of the record shows that after the July 2013 VA audiological evaluation was conducted, in August 2013, the examiner reviewed the claims file along with the findings from her examination of the Veteran in July 2013 and provided a supplemental opinion.  Neither the Veteran nor the representative has asserted that the August 2013 addendum opinion was inadequate. 

The Board notes that the Veteran was not afforded a VA examination in conjunction with his claim for service connection for dyslipidemia and hyperlipidemia.  However, the Board finds that no such examination is required in this case because a threshold requirement for providing a VA examination is that the record contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability.  38 C.F.R. § 3.159(c)(4).  As will be discussed in greater detail below, dyslipidemia and hyperlipidemia are laboratory findings and not a disability entitled to compensation.  As the Veteran has not asserted and the record does not show that he has a diagnosed disability based upon his dyslipidemia and hyperlipidemia, VA is under no duty to afford the Veteran a VA examination with respect to this claim.  Id.; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  

Similarly, the Veteran has not been afforded a VA examination in conjunction with his claim for service connection for liver pain and abnormal urinalysis, heart disease, and arrhythmias.  The Board has considered whether an examination is necessary.  Absent any competent and credible evidence suggesting that the Veteran has a diagnosis of a liver disability, heart disease, or arrhythmias, an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 79 (2006), is not met.  See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004).  

Finally, the Veteran was provided an opportunity to set forth his contentions during a November 2015 hearing before the undersigned.  The U.S. Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492   (2010).  The transcript reflects that at the November 2015 videoconference hearing, the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the Veteran's claims.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.102(c)(2), nor have they identified any prejudice in the conduct of the hearing.

The Veteran has not identified any pertinent evidence that remains outstanding.  Accordingly, VA's duty to assist is met and the Board will address the merits of the claims.

II. Legal Criteria, Factual Background, and Analysis

As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal.

Increased rating for hypertension with headaches

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.  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.  An appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204.  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  Id.

At a videoconference hearing on November 4, 2015, the Veteran withdrew his appeal seeking a rating in excess of 10 percent for hypertension with headaches.  See November 2015 videoconference hearing transcript, p. 10.  Hence, there is no allegation of error of fact or law for appellate consideration on this claim.  Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal must be dismissed.

Service connection 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013).

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arteriosclerosis and organic diseases of the nervous system (to include sensorineural hearing loss), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  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.  Id.  However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)."  Walker, 708 F.3d at 1337.  Service connection may nonetheless 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). 

Secondary service connection may be established for a disability that is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Substantiating a secondary service connection claim requires competent evidence of: (1) a diagnosis of the disability for which service connection is being sought; (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the already service-connected disability.  38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

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); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
 
1. Dyslipidemia and hyperlipidemia

The Veteran's postservice VA and private treatment records include findings of elevated cholesterol, high cholesterol, dyslipidemia, and/or hyperlipidemia.  It is his contention that these conditions are either caused or aggravated by the medications he has been prescribed for his service-connected hypertension with headaches.  See November 2015 videoconference hearing transcript, pp. 64-71.

Despite evidence in the record indicating that the Veteran has been prescribed medication to reduce his cholesterol levels, it is noted that elevated cholesterol, high cholesterol, dyslipidemia, and hyperlipidemia are not disabilities per se, for which VA compensation may be awarded.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer  v. Derwinski, 3 Vet. App. 223 (1992).  Rather, they are laboratory-confirmed clinical findings of abnormal blood chemistry characterized by elevated cholesterol with no diagnosis of an underlying chronic condition.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 903 (31st ed. 2007). 

Although elevated cholesterol, high cholesterol, dyslipidemia, and hyperlipidemia may be considered a risk factor in the development of certain diseases, they are not a disease, injury, or disability, in and of itself, for which VA compensation benefits are payable.  See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities; therefore, they are not appropriate entities for the rating schedule).  Furthermore, the term "disability" refers to impairment of earning capacity.  See Allen v. Brown, 7 Vet. App. 439 (1995).  There is no evidence of record suggesting that the Veteran's dyslipidemia or hyperlipidemia causes him any impairment of earning capacity.  Although dyslipidemia and hyperlipidemia (also referred to as elevated cholesterol and high cholesterol) may be a risk factor for disability or evidence of an underlying disability, it is not itself a disability for VA purposes.
Accordingly, because dyslipidemia and hyperlipidemia are not a current disability for which service connection may be granted, and neither the Veteran nor the record suggests that he has a diagnosed disability based upon his dyslipidemia or hyperlipidemia, the Board concludes that the preponderance of the evidence is against the claim of service connection for dyslipidemia and hyperlipidemia, and this claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

2. Liver pain and abnormal urinalysis

The Veteran seeks service connection for liver pain and abnormal urinalysis.  His STRs show that on July 2001 service separation physical examination, he was noted to have an abnormal urinalysis with his urine being positive for nitrites and trace amounts of protein.  It was recommended that he follow up with his primary care provider.  The Veteran's postservice VA and private treatment records do not, however, contain any findings indicative of an abnormal urinalysis.  They are also silent for any complaints, findings, treatment, or diagnoses related to the liver.  

Despite evidence in the record indicating that the Veteran had an abnormal urinalysis at the time of his separation from service, it is not shown that he currently has any abnormalities with his urine.  More importantly, even if he did have current findings of an abnormal urinalysis, it is not shown that he has an acquired disease entity that may be associated with such findings.  As noted, the Veteran's postservice treatment records are silent for any liver-related issues, including liver pain.

At the November 2015 videoconference hearing, the Veteran's only contention with respect to this claim was that the medications he had been prescribed for his service-connected hypertension with headaches "deplete[d] [his] body of potassium, and potassium works with [the] liver to filter [the] body which piles up the cholesterol and the liver and the diabetes and [the] cholesterol, they go together."  See November 2015 videoconference hearing transcript, p. 68.  Significantly, he did not argue or present evidence suggestive of a diagnosis of a liver disability (or any other diagnosis predicated on the finding of an abnormal urinalysis/liver pain).
Although an abnormal urinalysis finding and liver pain may be considered risk factors in the development of certain diseases, they are not diseases, injuries, or disabilities, in and of themselves, for which VA compensation benefits are payable.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer  v. Derwinski, 3 Vet. App. 223 (1992).  Given the absence in the clinical record of an acquired disease entity associated with a finding of abnormal urinalysis or liver pain, service connection cannot be granted on this basis alone.  

Accordingly, because liver pain and abnormal urinalysis readings are not a current disability for which service connection may be granted, and neither the Veteran nor the record suggests that he has a diagnosed disability based upon his liver pain or abnormal urinalysis, the Board concludes that the preponderance of the evidence is against the claim of service connection for liver pain and abnormal urinalysis, and this claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

3. Bilateral hearing loss

Hearing loss disability is defined by regulation.  For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz  are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The record reflects that the Veteran served as a combat engineer in the U.S. Army.  His STRs also show that he participated in a hearing conservation program and was "Routinely Exposed to Hazardous Noise."  It is therefore likely, and not in dispute, that he was exposed to noise trauma in service.  The next threshold matter that must be addressed is whether the Veteran has a diagnosis of hearing loss.

The record does not include any competent evidence of a diagnosis of a hearing loss disability by VA standards.  The Veteran's STRs show that during the course of his career in the U.S. Army, he was evaluated by audiogram on three occasions, including in September 1997 (enlistment examination) and July 2001 (separation examination).  On each of these occasions, while shifts in the Veteran's various hearing thresholds were shown (sometimes with improvement and, at other times, with worsening), a hearing loss disability was not noted.  The Veteran also indicated in his July 2001 report of medical history, which was completed for the purposes of his separation from the military, that he did not have nor had he ever had a hearing loss or wear a hearing aid.  Based on the foregoing, there is no basis in the record for establishing service connection for a bilateral hearing loss disability on the basis that it became manifest in service and persisted.

VA attempted to assist the Veteran in establishing his claim by arranging for him to be examined to determine the presence and etiology of a hearing loss disability.  On audiological evaluation in July 2013, puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
5
5
LEFT
0
5
5
10
10

Speech audiometry revealed speech recognition ability of 100 percent in each ear.  Based on the foregoing, the examiner found that the Veteran had normal hearing in both ears.  In August 2013, the examiner also reviewed the Veteran's claims file and stated that three audiograms, dated between September 1997 and July 2001, were located.  These three audiograms "suggested hearing with normal limits, bilaterally."  The examiner further stated that no significant threshold shifts were present, and that no other information regarding the Veteran's hearing was noted.  The examiner then stated, "Veteran's hearing was within normal limits at [July 2013] evaluation.  In accordance with VA regulations, pure tone thresholds 500-4000 Hz do not meet criteria for disability."

As noted, the results from the July 2013 VA audiological evaluation do not meet VA standards for hearing loss.  His postservice treatment records are likewise silent for any complaints, findings, treatment, or diagnosis of a bilateral hearing loss disability.  See 38 C.F.R. § 3.385.  At the November 2015 videoconference hearing, the Veteran's testimony with regard to his hearing loss claim revolved primarily around how he suffers from and is affected by ringing in the ears/tinnitus.  See November 2015 videoconference hearing transcript, pp. 86-90.  As was explained in the Introduction, although the Veteran believed tinnitus was part of his hearing loss claim, it is a separate issue that has not yet been adjudicated by the AOJ.  Therefore, any claim for service connection for tinnitus must be adjudicated separately by the AOJ first.

With respect to the Veteran's claim for service connection for bilateral hearing loss, it was explained to him at the November 2015 videoconference hearing that his claim had been denied because he did not have a current hearing loss disability for VA purposes.  During the hearing, the Veteran's representative indicated that he and the Veteran would "explore the possibility of getting [his] own exam and talk about that."  Id. at 89.  Although the record was held open for 60 days and the Veteran submitted additional medical evidence relating to his other claims for service connection or an increased rating, he has not submitted any new evidence suggesting that his hearing acuity has worsened since the July 2013 VA examination and August 2013 addendum opinion.  He has also not submitted any indication that another audiological evaluation was conducted after the November 2015 videoconference hearing, suggesting that there may be additional records that should be secured for consideration.  See 38 C.F.R. § 3.159(c)(2)(1).

In conclusion, the Board finds that at no time during the pendency of this appeal has the Veteran demonstrated, nor has the medical evidence shown, a diagnosis of a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (noting that the Board must consider evidence of a "recent" diagnosis made prior to the filing of a claim).  Because the record does not show a diagnosis of hearing loss disability during the relevant time period, the Board finds that there is no valid claim of service connection for such disability.  See Brammer  v. Derwinski, 3 Vet. App. 223 (1992).  Hence, service connection for bilateral hearing loss is denied.

4. Heart disease and arrhythmias

The Veteran seeks service connection for heart disease and arrhythmias.  His STRs are silent for any complaints, findings, treatment, or diagnoses related to heart disease and arrhythmias.  On July 2001 service separation physical examination, a clinical evaluation of the Veteran's heart was normal.  In the associated report of medical history, which was completed by the Veteran, he also indicated that he did not have nor had he ever had "heart trouble or murmur."  Based on the foregoing, there is no basis in the record for establishing service connection for heart disease or arrhythmias on the basis that either condition became manifest in service and persisted.  

Significantly, it is not the Veteran's contention that he has heart disease and arrhythmias as a direct result of his service.  Rather, it is his contention that they are related to the medications he has been taking for his service-connected hypertension with headaches.  See November 2015 videoconference hearing transcript, pp. 57-64.  As discussed directly above, however, a threshold issue for establishing any claim for service connection is the existence of a current disability.  

At the November 2015 videoconference hearing, it was the Veteran's testimony that his claim for heart disease and arrhythmias was predicated, essentially, on him having an irregular heartbeat.  Id. at 57.  He and his spouse stated that this irregular heart beat was first discovered through a stress test that was conducted in either 2008, 2009, or 2010, at the "Health Diagnostics Clinic in Austin, Texas."  Id. at 61.  The Veteran stated he could not recall being given a diagnosis of a heart disorder, but he did recall being told he had an arrhythmia.

The Board has reviewed the Veteran's postservice VA and private treatment records, including those identified at the November 2015 videoconference hearing, and finds that they do not include any diagnoses of a heart disease or arrhythmia.  In particular, the treatment records from the Austin Diagnostic Clinic show that in November 2010, the Veteran was referred for a cardiology consult due to complaints of chest pain.  According to the Veteran, he had been experiencing on and off chest pain for months that occurred both with and without exercise.  He reported that they were usually associated with food intake, his weight, and his reflux esophagitis versus with exercise.  He denied any associated symptoms of shortness of breath, orthopnea palpitation, or diaphoresis.  His past medical history was significant for hypertension and hyperlipidemia, and it was also noted that he had some cardiac arrhythmias in the past, but the Veteran noted that he served in the military and had always passed his physical examinations and was able to perform in rigorous exercise programs with no limitation.  On physical examination, the Veteran's cardiovascular system was essentially normal.  The physician also reviewed the report of an electrocardiogram (EKG) that had been conducted in February 2010, and interpreted as normal.  The physician assessed, "Chest discomfort atypical his 12-lead EKG is normal reassurance given I explained to him that if his symptoms become more intense or changes he will benefit from a stress this we will do observation for now."  

The Veteran's other postservice treatment records are likewise silent for any diagnosis of heart disease or arrhythmias.  For example, it is noted regularly in his VA treatment records (through February 2015) that his heart has a regular rate and rhythm, with no obvious murmurs/rubs.  Treatment records (through October 2014) from his private primary care provider, Dr. J.Z., are likewise silent for any indication of heart disease or arrhythmias.  

At the November 2015 videoconference hearing, the Veteran's representative recommended to the Veteran that he obtain a medical opinion from his primary care provider to the effect that he had an arrhythmia problem, which was caused or aggravated by the medications prescribed for his service-connected hypertension with headaches.  See November 2015 videoconference hearing transcript, pp. 62-63.  Although the record was held open for 60 days and the Veteran submitted additional medical evidence (including from Dr. J.Z.), he has not submitted any new evidence suggesting that he has been given a diagnosis of heart disease or arrhythmias.  He has also not indicated subsequent to the November 2015 videoconference hearing that there might be other evidence potentially relevant to his claim that is still outstanding, requiring the remand of these issues for additional development.  See 38 C.F.R. § 3.159(c)(2)(1).

In conclusion, the Board finds that at no time during the pendency of this appeal has the Veteran demonstrated, nor has the medical evidence shown, a diagnosis of heart disease or arrhythmias.  See McClain, 21 Vet. App. at 321; cf. Romanowsky, 26 Vet. App. at 294.  Because the record does not show a diagnosis of heart disease or arrhythmias during the relevant time period, the Board finds that there is no valid claim of service connection for either disability.  See Brammer3 Vet. App. at 223.  Hence, service connection for heart disease and arrhythmias is denied.


ORDER

The appeal seeking a rating in excess of 10 percent for hypertension with headaches is dismissed.

Service connection for dyslipidemia and hyperlipidemia is denied.

Service connection for liver pain with abnormal urinalysis is denied.

Service connection for bilateral hearing loss is denied.

Service connection for heart disease is denied.

Service connection for arrhythmias is denied.

REMAND

In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court indicated there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4).  Id. at 81.  Under this test, VA will provide a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim.  Id.; see also 38 C.F.R. § 3.159(c)(4). 

The Veteran has not been afforded a VA examination in his claims seeking service connection for a laceration of the 5th digit right hand with scarring, skin disease, acid reflux/GERD, a right elbow injury, a back condition, cervical spine arthritis, a bilateral shoulder condition, right ankle tendonitis, restless leg syndrome, a foot condition, sleep apnea, an acquired psychiatric disorder, narcolepsy, or a genitourinary disorder.  However, for the reasons explained below, the Board finds that an examination is warranted in each of these matters prior to appellate review.

Laceration of the 5th digit right hand with scarring

Regarding the claim for service connection for laceration of the 5th digit right hand with scarring, a review of the Veteran's STRs shows that he cut the little finger of his right hand in February 1999.  The Veteran received two stitches to the little finger and was given a profile.  No diagnosis was otherwise offered for the injury, and he was not prescribed any medications.  Instead, he was instructed to limit the activity of the little finger of his right hand.  One week after the initial treatment, the Veteran was seen again to have his stiches removed.  It was noted at the time that his finger was well-healed and without any signs or symptoms of an infection.  

Although it is conceded that the Veteran injured the 5th digit of his right hand in service, his claim has been denied thus far on the basis that he does not have any residual disabilities from that injury.  See February 2011 rating decision.  At the November 2015 videoconference hearing, the Veteran and his representative observed that he had a visible scar on the little finger of his right hand.  The Veteran also testified that he experiences numbness and tingling in that finger, although he did not think he had any loss of dexterity or motion in that finger.  See November 2015 videoconference hearing transcript, pp. 43-44.  A veteran is competent to testify as to facts or circumstances that can be observed and described by a layperson.  38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994) ("[C]ompetent testimony is . . . limited to that which the witness has actually observed, and is within the realm of his personal knowledge").  Given the Veteran's hearing testimony, the Board finds that an examination is necessary to determine whether the Veteran has any current disabilities in his 5th digit of the right hand that are etiologically related to his in-service injury.

Skin disease

Regarding the Veteran's claim for service connection for skin disease, to include chronic pustules of face and neck with scarring/pseudofolliculitis barbae, hyperpigmented lesions, and pruritic keloid lichen planus, his STRs show that in March 1999, he requested treatment for pseudofolliculitis barbae and a profile.  On physical examination, it was noted that the Veteran had papules on his face, chin, and neck, but mostly on the neck.  There were no pustules or scarring.  Pseudofolliculitis barbae on the neck was assessed, and the Veteran was instructed on the correct way to shave and care for the skin condition.  

Although it is conceded that the Veteran was treated for pseudofolliculitis in service, his claim has been denied thus far on the basis that he does not have a current diagnosis of a skin disease.  See February 2011 rating decision.  However, a review of the Veteran's postservice treatment records shows that in June 2009 (a few months prior to his claim for service connection), he was assessed as having atopic dermatitis on the legs and back, seborrheic dermatitis along the face and scalp, and irritated seborrheic keratoses on the left eyelid.  

Furthermore, at the November 2015 videoconference hearing, it was the Veteran's testimony that in addition to his in-service treatment for pseudofolliculitis barbae, he continues to suffer from rashes and itchy skin as a result of his miliary duties in service.  Specifically, he stated he was required to pour oil into vehicles and that his hands would break out from that exposure to oil.  See November 2015 videoconference hearing transcript, pp. 51-57.

In light of the foregoing information, the Board finds that a VA examination is necessary to determine whether the Veteran currently has any diagnosable skin diseases, to include chronic pustules of face and neck with scarring/ pseudofolliculitis barbae, hyperpigmented lesions, and pruritic keloid lichen planus, that are etiologically related to either his treatment for pseudofolliculitis barbae in service or his exposure to oil in service.

Acid reflux/GERD 

Regarding the claim for service connection for acid reflux/GERD, the Veteran's STRs show that in March 1999, he presented with complaints of a stomach ache for 2 months, off and on.  During his visit with the treating provider, the Veteran complained additionally of nausea, pains, cramps, vomiting, and pain on the left side of the stomach.  He was also positive for heartburn.  GERD was assessed, and the Veteran was prescribed Zantac.  In May 1999, he returned for follow-up.  He complained of acid reflux for 3 months, which he described as stomach acid and heart burn in the chest area.  During his visit with the treating provider, he stated his acid reflux was "still bothering him."  The treating provider noted that the Zantac he had been prescribed did not help.

Although it is conceded that the Veteran was treated for acid reflux/GERD in service, his claim has been denied thus far on the basis that he does not have a current diagnosis of that disability.  To the extent the Veteran has been treated for GERD subsequent to service, it has been explained that those were isolated incidents in 1999 and in February 2010, with the February 2010 incident resolving after he discontinued using non-steroidal anti-inflammatory medication for his service-connected bilateral knee disability.  See February 2011 rating decision; July 2013 statement of the case.  At the November 2015 videoconference hearing, the Veteran testified that he does still suffer from acid reflux/GERD and that while it is not a chronic condition, it is triggered by certain events, such as eating spicy foods.  He also reported that his primary care provider, Dr. J.Z., is aware of his issues with acid reflux and that he takes over the counter medication for the condition.  A review of Dr. J.Z.'s treatment records shows that they include notations of the Veteran's complaints of reflux.  In light of this information, as well as the Veteran's complaints of ongoing symptomatology, the Board finds that a VA examination is necessary to determine whether the Veteran has a current diagnosis of acid reflux/GERD that is etiologically related to his in-service treatment for the same, or to the medications he has been prescribed for his service-connected patellofemoral pain syndrome of the bilateral knees.

Right elbow injury 

Regarding the claim of service connection for a right elbow injury, the Veteran's STRs show that in January 1999, he presented with complaints of right elbow pain for three days, which started after he hyperextended his right elbow while playing basketball.  After a physical examination, triceps head tendonitis was assessed.  

Although it is conceded that the Veteran was treated for a right elbow injury in service, his claim has been denied thus far on the basis that he does not have a current diagnosis of right elbow disability.  See February 2011 rating decision.  At the November 2015 videoconference hearing, the Veteran testified that his right elbow still bothers him.  In particular, he stated that his right elbow makes clicking sounds, swells, and prevents him from lifting heavy objects.  He also stated that he experiences pain and weakness in the right elbow.  See November 2015 videoconference hearing transcript, pp. 40-42.  In light of the Veteran's hearing testimony, the Board finds that an examination is necessary to determine whether the Veteran has a current disability of the right elbow that is etiologically related to his in-service injury.


Back condition; cervical spine arthritis; bilateral shoulder condition; right ankle tendonitis; restless leg syndrome; foot condition

Regarding the Veteran's claims for service connection for a back condition, cervical spine arthritis, bilateral shoulder condition, right ankle tendonitis, restless leg syndrome, and foot condition, his STRs are silent for any complaints, findings, treatment, or diagnoses related to those disabilities.  It is his contention, however, that each of those disabilities had their onset in service.  He also contends that his right ankle tendonitis is secondary to his service-connected patellofemoral pain syndrome of the bilateral knees.  

Specifically, at the November 2015 videoconference hearing, the Veteran testified that he injured his lumbar and cervical spine in service when he was stationed at the National Training Center in Fort Irwin, California.  He reported that he was treated by a field medic and given muscle relaxers.  He could not recall whether he received any follow-up treatment after returning to his base, but thought that he had.  He testified further that after that initial injury, he continued to experience periodic back spasms and while he concedes he was in a motor vehicle accident after service, wherein he also injured his back, it is his contention that he had a back condition prior to that event and that the motor vehicle accident only aggravated whatever existing back condition he might have had at that time.  See November 2015 videoconference hearing transcript, p. 44-51.  

Regarding a bilateral shoulder condition, both the Veteran and his spouse testified that they could recall when he injured his shoulders while working on vehicles in service.  The Veteran testified further that his shoulders have continued to bother him since service, with clicks and pain.  See id. at pp. 35-40.  

With respect to right ankle tendonitis, the Veteran testified that he twisted his right ankle a few times in service.  He could not recall whether he sought treatment for those injuries.  He also testified that, sometimes, because of the service-connected patellofemoral pain syndrome in both of his knees, his right foot "rolls" and he trips.  Therefore, it was his contention that his right ankle tendonitis was both directly related to his service and aggravated by his service-connected patellofemoral pain syndrome in the right and left ankles.  See id. at pp. 21-26.  

Regarding the claim for service connection for restless leg syndrome, the Veteran and his spouse testified that this condition had its onset in service.  In particular, the Veteran's spouse stated she could recall how after returning from field exercises where the Veteran had not been able to sleep properly, he would lie down and start twitching and flailing his legs "like he was still marching" and "still moving through the motions."  Both she and the Veteran noted that he also constantly had to switch his positions when he slept because of the pain in his knees.  See id. at 32-35.

As for the Veteran's foot condition, he claimed initially bunions and bilateral hallux valgus.  At the November 2015 videoconference hearing, however, he also discussed having hammertoes.  Regardless of the actual diagnosis, it is the Veteran's contention that he has a foot condition as a result of marching in boots in service.  He testified at the November 2015 videoconference hearing that he reported having hammertoes at the time of his separation from service.  See id. at 27-32.  A review of those records shows that in the July 2001 report of medical history, which was completed by the Veteran, he denied having or having ever had foot trouble (e.g., pain, corns, bunions, etc.).  However, in the associated report of service separation physical examination, it was noted that the Veteran had calluses on the 2nd, 3rd, and 4th toes of both feet.  

As was discussed above, a veteran is competent to testify as to facts or circumstances that can be observed and described by a layperson.  Furthermore, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), it was the opinion of the United States Court of Appeals for the Federal Circuit that lay evidence could not be determined to be lacking in credibility merely because it was unaccompanied by contemporaneous medical evidence.  Id. at 1336.  Therefore, even though the Veteran's STRs are silent for any mention of a back condition, cervical spine arthritis, bilateral shoulder condition, right ankle tendonitis, restless leg syndrome, or bunions/hallux valgus/hammertoes, it is the opinion of the Board that a VA examination is necessary to determine whether he has a current disability of the lumbar spine, cervical spine, right ankle, legs, and feet, which is consistent with the injuries he described at the November 2015 videoconference hearing.  In the case of the Veteran's claim for right ankle tendonitis, an opinion is also necessary to determine whether it is secondary to his service-connected patellofemoral pain syndrome of the bilateral knees.  An opinion is also necessary to determine whether the Veteran's foot condition, if any, is related to the calluses noted at the time of his separation from service.

Sleep apnea

Regarding the Veteran's claim for service connection for sleep apnea, his postservice treatment records (both VA and private) include a current diagnosis of that disability.  Therefore, what remains to be established is whether his sleep apnea is etiologically related to his service and/or to a service-connected disability.

At the November 2015 videoconference hearing, both the Veteran and his spouse testified that while sleep apnea was not diagnosed until several years after his separation from service, the symptoms had their onset in service.  In particular, the Veteran's spouse recalled how after the Veteran fell asleep in service, he would stop breathing for as long as 45 seconds or more before his body trembled and his heart sped up, then he would fight and gasp for air.  Both the Veteran and his spouse also indicated that these symptoms worsened with the medications the Veteran was prescribed for his service-connected hypertension with headaches, as it caused him to gain a lot of weight, which aggravated his sleep apnea.  See November 2015 videoconference hearing transcript, pp. 109-111.

In light of the hearing testimony, the Board finds that a VA examination is necessary to determine whether the Veteran's current sleep apnea had its onset in service, is otherwise related to his service, and/or is caused or aggravated by his service-connected hypertension with headaches.

Acquired psychiatric disorder 

The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, readjustment/adjustment disorder with mixed anxiety, and depressive mood congruent.  In various statements, to include at the November 2015 videoconference hearing, the Veteran stated he was traumatized by experiences in basic training where the men he served with would walk through the open-stall showers and comment on the sizes of men's genitals.  The Veteran stated this made him so uncomfortable he did not like to shower with others and started showering in the middle of the night when he could go into the bathroom by himself.  He also explained that he really hated his time in the military because of all the pressures that were placed on him, including having to be separated often from his family (including when his spouse was pregnant), suffering from sleep deprivation as a result of the long hours he had to work, and because he was under constant threat of deployment to places like Iraq, Kuwait, and Bosnia.  The Veteran also stated that as the only African-American in his unit, he felt discriminated against and it made him angry to be treated differently.  See November 2015 videoconference hearing transcript, pp. 96-108; January 2016 VA Form 21-0781a, Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault; and April 2010 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD.  

A review of the Veteran's postservice treatment records (both VA and private) show that they do not include a diagnosis of PTSD.  However, they do include reports of the Veteran seeking mental health treatment as a result of his time in service, as well as the diagnoses of various psychiatric disorders other than PTSD.  To the extent that they also indicate that the Veteran was sexually abused as a child, in a January 2016 statement, the Veteran explained that he had suppressed much of those memories until his military sexual trauma in service, which "aggravated and worsened [his] medical condition."  

As noted, the Veteran has not been afforded a VA psychiatric examination in conjunction with his claim for service connection.  Given the foregoing information, the Board finds that a VA examination/medical opinion would be helpful in determining whether the Veteran has PTSD or any other diagnoses of an acquired psychiatric disorder, and if so, whether any of those diagnoses are related to his service.

Narcolepsy

The Veteran seeks service connection for narcolepsy.  At the November 2015 videoconference hearing, he explained that due to the pressures of his job in service as well as the length of his duty assignments, he frequently felt exhausted and would fall asleep at random times.  His daytime sleepiness was then exacerbated by his inability to achieve proper sleep at night due to his (alleged) sleep apnea symptoms.  At the hearing, it was also suggested that his narcolepsy might have been a reaction to his psychological state in service.  The Veteran stated further that even after service, he was never able "reset that clock," and continued to struggle with narcolepsy.  See November 2015 videoconference hearing, pp. 112-117.  

In light of the Veteran's hearing testimony, the Board finds that a VA examination for a medical opinion is necessary to determine whether he has a diagnosis of narcolepsy, and if so, whether such is directly related to his service, or to his claims of service connection for an acquired psychiatric disorder and/or sleep apnea.  In rendering an opinion on the latter matter, it would also be helpful to know whether the Veteran's sleep issues represent a distinct diagnosis/disability or whether they are symptoms of his acquired psychiatric disorder or sleep apnea.

Genitourinary disorder & Erectile dysfunction

The Veteran seeks service connection for a genitourinary disorder, which he claimed as an epididymal cyst, spermatocele, left scrotal mass, urinary incontinence, and erectile dysfunction.  His STRs are silent for any complaints, findings, treatment, or diagnoses relating to the genitourinary system.  However, at the November 2015 videoconference hearing, the Veteran testified that he tripped and fell while trying to jump over a log as part of an obstacle course during basic training.  He stated that when he fell, he landed on his private areas.  It is his contention that the issues he has had postservice with his genitourinary system relate back to this in-service injury.  See November 2015 videoconference hearing transcript, pp. 75-85.

As was discussed above, a veteran is competent to testify as to facts or circumstances that can be observed and described by a layperson.  Furthermore, lay evidence may not be determined to be lacking in credibility merely because it is unaccompanied by contemporaneous evidence.  Therefore, even though the Veteran's STRs are silent for the in-service injury described by the Veteran at the November 2015 videoconference hearing, or any mention of issues related to the genitourinary system, it is the opinion of the Board that a VA examination is necessary to determine whether the Veteran has a genitourinary disorder that is consistent with his alleged in-service injury.  

In the case of the Veteran's claim for service connection for erectile dysfunction, it is also noted that at the November 2015 videoconference hearing, he alleged that this was also secondary to his service-connected hypertension with headaches (and specifically, to the medications he was prescribed for that disability).  Given this allegation, an opinion should also be obtained as to whether the Veteran's erectile dysfunction, if any, is caused or aggravated by his service-connected hypertension with headaches. 

Diabetes mellitus, Type II

The Veteran seeks service connection for diabetes mellitus, Type II, which he asserts is either caused or aggravated by the medications he has been prescribed for his service-connected hypertension with headaches.  As was discussed above, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  In this regard, the Veteran's postservice treatment records do not show that he has been given a diagnosis of diabetes mellitus, Type II.  Rather, they show that he has been identified as being a prediabetic and prescribed Metformin.  

At the November 2015 videoconference hearing, the Veteran testified that he began to experience elevated glucose levels after taking medication to treat his hypertension, which caused him to gain weight.  He testified further that the Metformin was prescribed to help him control his glucose levels and his weight.  Both he and his spouse noted, however, that even with the medication, his blood sugar levels are in the "high range of the diabetes" and that he was "a couple of points away from being a diabetic."  Therefore, it was their contention that if he did not take Metformin, he would have diabetes.  See November 2015 videoconference hearing transcript, pp. 65-70.  

In Jones v. Shinseki, 26 Vet. App. 56 (2012), it was the Court's holding that in the context of assigning disability ratings, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria.  Although the current claim is one of service connection, it is the opinion of the Board that a medical opinion is necessary to determine whether, without the prescription of Metformin (and the ameliorative effects such medication might afford, if any), the Veteran would be shown to have a diagnosis of diabetes mellitus, Type II, during the appeal period (and if so, whether such is related to his service-connected hypertension with headaches).  Accordingly, this claim is being remanded for a VA examination.

Migraine headaches

The Veteran is currently service-connected for hypertension with headaches.  However, it is his contention that he also suffers from migraine headaches, which he believes are a separate disability from the headaches associated with his hypertension.  It is also his contention that these migraine headaches had their onset in service.  See November 2015 videoconference hearing transcript, pp. 11-16.  

The Veteran's STRs show that in June 2001, he complained of headaches on and off for one week, which were not alleviated by Tylenol.  It was noted during the treatment session that the Veteran had a past medical history of elevated blood pressure, and that he reported having increased stress, but no past history of headaches.  He also had questionable light sensitivity, but no neurological signs or symptoms.  He had mild nausea, but no vomiting.  The assessment was: Hypertension; headaches-tension vs. blood pressure related vs. migraine.

On June 2010 VA examination, which was conducted in conjunction with the Veteran's claim for an increased rating for his service-connected hypertension, it was noted that the Veteran complained of headaches on a regular basis.  After an examination of the Veteran, however, it was the examiner's opinion that the Veteran did not have migraine headaches.  The examiner stated, "Based on the history and clinical picture, veteran was never treated specifically for migraine headaches.  These are as likely associated due to the worsening hypertension."

The Veteran was also provided a VA examination specific for headaches (including migraine headaches) in January 2013.  During this examination, "migraine including migraine variants," was diagnosed.  It was also remarked that he had "[s]ymptoms consistent with mixed tension migraine."  No opinion was offered as to the etiology of this disability.

In light of the foregoing information, the Board finds that another VA examination is needed for a medical opinion that reconciles the findings from the June 2010 and January 2013 VA examinations, considers the Veteran's testimony at the November 2015 videoconference hearing, and addresses whether the Veteran has a headache disability, to include migraine headaches, that is separate from his service-connected hypertension with headaches and is etiologically related to his service.

Mild amblyopia/sensitivity to light

The Veteran seeks service connection for mild amblyopia and sensitivity to light.  His claim has been denied thus far on the basis that his mild amblyopia is a congenital or developmental defect, and there is no evidence that the defect was aggravated beyond normal progression by service or that he developed a superimposed disability.  See February 2011 rating decision.  

The Veteran's STRs show that on September 1997 service entrance report of medical examination, he was noted to have a refractive error in both eyes and astigmatism.  Thereafter, he was seen on several occasions in service by the optometry clinic for the issuance of glasses/contact lenses.  On one occasion, in February 2001, he was assessed as having "H-A" and mild amblyopia.  On July 2011 service separation physical examination, he was noted as having decreased visual acuity.  

At the November 2015 videoconference hearing, the Veteran explained that his claim for mild amblyopia/light sensitivity is predicated on the fact that he started experiencing sensitivity to light in service.  He stated that because many of his duty assignments took place at night, he got used to being in the dark and became sensitive to bright lights.  He and his spouse also indicated that his light sensitivity was associated with his headaches, and that the onset of the light sensitivity coincided with his headaches and hypertension.  Regarding the amblyopia, it was his testimony that he did not recall having this disability prior to service.  See November 2015 videoconference hearing transcript, pp. 90-95.

In light of the foregoing information, the Board finds that a VA examination for a medical opinion is necessary to determine whether the Veteran has an eye disability, to include light sensitivity, that is related to his service.  A medical opinion should also be obtained as to whether the Veteran's light sensitivity is secondary to his migraine headaches or to his service-connected hypertension with headaches.

Bilateral knee disability other than patellofemoral pain syndrome of the right and left knees

The Veteran is currently service-connected for patellofemoral pain syndrome of the right and left knees.  However, it is his contention that he has additional diagnoses of the bilateral knees, which are also related to his service.  These additional diagnoses include: tendonitis, arthritis, degenerative joint disease, osteoarthritis, bursitis, and arthralgia.

The Veteran's STRs show that he was treated on multiple occasions throughout service for issues related to his bilateral knees.  As noted, the Veteran is service-connected for patellofemoral pain syndrome in each knee.  To the extent he argues he has additional disabilities of the knee that are also related to his service, the Board notes that a threshold issue to be addressed is whether he has a diagnosis for which service connection may be granted.  On June 2010 VA examination of the joints, it was the examiner's opinion that the Veteran did not have bursitis, "plain arthritis," or osteoarthritis in either knee.  The Veteran was also provided a VA examination of the knee and lower leg in January 2013.  During that examination, patellofemoral pain syndrome of the bilateral knees was diagnosed; no other diagnoses were provided for the Veteran's right and left knees.  

At the November 2015 videoconference hearing, it was the Veteran's testimony that he did have a diagnosis of arthritis in his bilateral knees.  See November 2015 videoconference hearing transcript, pp. 7-10.  A review of the Veteran's more recent VA treatment records and private treatment records, in fact, indicate that he has a diagnosis of ostearthritis in his bilateral knees.  See, e.g., December 2012 VA ambulatory care administrative/telephone note (requesting that the Veteran be informed that his magnetic resonance imaging (MRI) study showed ostearthritis in the left knee and some changes in the right knee that were suggestive of some functional problems with the knee as well as osteoarthritis).  

Given the foregoing information, the Board finds that another VA examination is needed for a medical opinion that reconciles all conflicting evidence in the record, identifies all diagnosable disabilities in the Veteran's right and left knees, and provides an opinion as to whether any of those disabilities are related to his service.

Patellofemoral pain syndrome of the bilateral knees

The Veteran is currently rated 10 percent for patellofemoral pain syndrome of each knee; he seeks an increased rating.  As discussed above, the Veteran is also seeking service connection for a bilateral knee disability other than patellofemoral pain syndrome.  As the adjudication of that claim will have impact on the current claim for increased ratings, the Board finds that they are inextricably intertwined.  Hence, consideration of whether the Veteran is entitled to an increased rating for patellofemoral pain syndrome of the bilateral knees must be deferred pending resolution of the service connection claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together).



Records Development

VA has a duty to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 C.F.R. § 3.159(c).  In this regard, the Board notes that at the November 2015 videoconference hearing, and in conjunction with his claim for an increased rating, the Veteran mentioned that he had gone through "Voc Rehab" and "utilized the veterans' program."  See November 2015 videoconference hearing transcript, p. 5.  From this statement, it appears the Veteran received Vocational Rehabilitation services through VA.  Consequently, his VA Vocational Rehabilitation records, if any, should be obtained for the record.  Importantly, the Court has held that records generated by VA facilities that may have an impact on the adjudication of a claim, such as Vocational Rehabilitation records, are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  Therefore, VA has a duty to seek such records.

Similarly, during the Veteran's testimony regarding his claim for service connection for a back condition and cervical spine arthritis, he and his spouse indicated that the last place he was treated for either of those conditions was at "Athens Sport."  He also testified in conjunction with his claim for service connection for mild amblyopia/sensitivity to light, that he sees an optometrist every year.  See November 2015 videoconference hearing transcript, p. 49, 92.  A review of the record does not show that it includes treatment records from Athens Sport or an optometrist.  Accordingly, reasonable efforts should be made on remand to obtain such records for the claims file.

Finally, as the record reflects that the Veteran receives medical treatment through VA, updated VA treatment records should continue to be obtained. 

Accordingly, the case is REMANDED for the following actions:

1. 	Contact the Veteran and ask that he identify the provider(s) of any additional treatment or evaluation he has received for his laceration of the 5th digit right hand with scarring, skin disease, acid reflux/GERD, right elbow injury, back condition, cervical spine arthritis, bilateral shoulder condition, right ankle tendonitis, restless leg syndrome, foot condition, sleep apnea, acquired psychiatric disorder, narcolepsy, genitourinary disorder, prediabetes, migraine headaches, mild amblyopia/light sensitivity, bilateral knee disability other than patellofemoral pain syndrome of the right and left knees, and service-connected patellofemoral pain syndrome of the right and left knees, records of which are not already associated with the claims files, and to provide any releases necessary for VA to secure such records of treatment or evaluation. 

Obtain complete records of all such treatment or evaluation from all sources identified by the Veteran, to specifically include from Athens Sport and his optometrist.

2. 	Secure for the claims file copies of the Veteran's relevant VA treatment records from his current VA Medical Center (dated from February 2015 to the present).

3. 	Secure for the claims file a copy of the Veteran's VA Vocational Rehabilitation file.

4. 	If any of the above-requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e).

5. 	After the above records request has been completed, to the extent available, arrange for the Veteran to be afforded an examination by an appropriate examiner to determine the nature and likely etiology of his claimed laceration of the 5th digit right hand with scarring, skin disease, acid reflux/GERD, restless leg syndrome, foot condition, sleep apnea, narcolepsy, genitourinary disorder, diabetes mellitus, Type II, and migraine headaches.  The Veteran's claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination.  Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the below questions.  

In providing the requested opinions, the examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given.  If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation.

The questions to be addressed by the examiner are:

Laceration of the 5th digit right hand with scarring 

(a) Does the Veteran have a current disability of the 5th digit right hand, to include scarring and/or numbness and tingling in that finger?  

(b) For each disability diagnosed in the 5th digit right hand, is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include his in-service laceration of the 5th digit right hand?

Skin disease 

(c) Identify all skin diagnoses that the Veteran has been given during the appeal period (i.e., from January 2010), to include during the current VA examination.

In identifying the Veteran's current skin diagnoses, the examiner should comment on the diagnoses already of record (e.g., pseudofolliculitis barbae, dermatitis, and keratosis), expressing agreement or disagreement with those diagnoses, and explaining the rationale for the agreement or disagreement.  The examiner should also address the Veteran's contentions that he currently suffers from chronic pustules of the face and neck with scarring, hyperpigmented lesions, and pruritic keloid lichen planus.

(d) For each skin disability diagnosed, is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include his treatment for pseudofolliculitis barbae therein and/or to his exposure to oil therein? 

Acid reflux/GERD

(e) Has the Veteran been given a diagnosis of acid reflux/GERD at any point during the appeal period (i.e., from January 2010), to include during the current VA examination?

(f) If acid reflux/GERD has been diagnosed during the appeal period, is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include as due to his treatment for GERD therein?

(g) If acid reflux/GERD has been diagnosed during the appeal period but it is determined to be not directly related to his service, is it at least as likely as not (50 percent or better probability) caused and/or aggravated by his service-connected patellofemoral pain syndrome of the right and left knees, to specifically include the medication he was prescribed for those disabilities?

Restless leg syndrome 

(h) Does the Veteran have a current diagnosis of restless leg syndrome?  

(i) If restless leg syndrome is diagnosed, is it at least as likely as not (50 percent or better probability) that the disability had its onset in service or is otherwise related to the Veteran's service?

Foot condition

(j) Identify all foot diagnoses that the Veteran has been given during the appeal period (i.e., from January 2010), to include during the current VA examination.

In identifying the Veteran's current foot diagnoses, the examiner should comment on any diagnoses already of record, expressing agreement or disagreement with those diagnoses, and explaining the rationale for the agreement or disagreement.  The examiner should also address the Veteran's contention that he currently suffers from bunions, bilateral hallux valgus, and hammertoes.

(k) For each foot disability diagnosed, is it at least as likely as not (50 percent or better probability) related to the Veteran's service? 

In addressing this question, the examiner should comment specifically on the significance, if any, of the bilateral foot calluses noted at the time of the Veteran's service separation physical examination.  The examiner should also address the Veteran's contention that he has a current foot disorder as a result of marching in boots in service.

Sleep apnea 

(l) Is it at least as likely as not (50 percent or better probability) that the Veteran's sleep apnea had its onset in service or is otherwise related to his service?  

(m) If it is determined that the Veteran's sleep apnea is not directly related to his service, is it at least as likely as not (50 percent or better probability) caused or aggravated by his service-connected hypertension with headaches, to specifically include the medications he was prescribed for that disability?

Narcolepsy

(n) Does the Veteran have a current diagnosis of narcolepsy?  In addressing this question, the examiner should discuss whether the Veteran's sleep issues are a distinct, diagnosable disability, or whether they are a symptom of his sleep apnea and/or an acquired psychiatric disorder.

(o) If narcolepsy is diagnosed, is it at least as likely as not (50 percent or better probability) that the disability had its onset in service or is otherwise related to the Veteran's service?

(p) If narcolepsy is diagnosed but not determined to be directly related to the Veteran's service, is it at least as likely as not (50 percent or better probability) caused or aggravated by an acquired psychiatric disorder and/or his sleep apnea?  

Genitourinary disorder 

(q) Identify all genitourinary disorder diagnoses that the Veteran has been given during the appeal period (i.e., from January 2010), to include during the current VA examination.

In identifying the Veteran's current genitourinary disorders, the examiner should comment on the diagnoses already of record and/or claimed by the Veteran (e.g., epididymal cyst, spermatocele, left scrotal mass, urinary continence, and erectile dysfunction), expressing agreement or disagreement with those diagnoses, and explaining the rationale for the agreement or disagreement.  

(r) For each genitourinary disorder diagnosed, is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include his alleged in-service injury wherein he jumped over a log and fell on his private areas?  The examiner should indicate whether the diagnosed disorders are consistent with the alleged injury mechanism.  

(s) Regarding the Veteran's claimed erectile dysfunction, if such is not determined to be related to his service, is it at least as likely as not (50 percent or better probability) caused or aggravated by his service-connected hypertension with headaches, to specifically include the medications he was prescribed for that disability?

Diabetes mellitus, Type II

(t) Does the Veteran have a current diagnosis of diabetes mellitus, Type II?  

In addressing this question, the examiner should note that the Veteran has been determined to be a prediabetic and prescribed Metformin; the examiner should then discuss specifically whether the Veteran would be a diabetic without the use of Metformin.

(u) If diabetes mellitus, Type II, is diagnosed, is it at least as likely as not (50 percent or better probability) related to the Veteran's service?

(v) If diabetes mellitus, Type II, is diagnosed but not determined to be directly related to the Veteran's service, is it at least as likely as not (50 percent or better probability) caused or aggravated by his service-connected hypertension with headaches, to specifically include the medications he was prescribed for that disability?

Migraine headaches

(w) Has the Veteran been given a diagnosis of migraine headaches (or any other headache disorder separate from those already associated with his service-connected hypertension) at any point during the appeal period (i.e., from January 2010), to include during the current VA examination?  

In addressing this question, the examiner should comment on the opinions already of record in this matter (i.e., the June 2010 VA examination wherein it was opined that the Veteran did not have migraine headaches, but had headaches associated with his service-connected hypertension, and the January 2013 VA examination wherein migraine including migraine variants was diagnosed), expressing agreement or disagreement with the conclusions reached in each, and explaining the rationale for the agreement or disagreement.

(x) If migraine headaches have been diagnosed during the appeal period, is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include as due to his treatment for headaches therein?

6. 	After the above records request has been completed, to the extent available, arrange for the Veteran to be afforded an examination by a psychiatrist or psychologist to determine the nature and likely etiology of his psychiatric disability.  The Veteran's claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination.  Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the following:

(a) What is (are) the diagnosis(es) for the Veteran's current psychiatric disability(ies)?

(b) For each psychiatric disability diagnosed, please provide an opinion as to whether such is, at least as likely as not (50 percent or better probability), related to the Veteran's service.

The examiner should also discuss specifically the psychiatric diagnoses already of record (to include readjustment/adjustment disorder with mixed anxiety and depressive mood congruent), and whether he or she disagrees with those past diagnoses.  The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. 

If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation.

7. 	After the above records request has been completed, to the extent available, arrange for the Veteran to be afforded an examination by an optometrist or ophthalmologist to determine the nature and likely etiology of his eye disability.  The Veteran's claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination.  Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the following:

(a) What is (are) the diagnosis(es) for the Veteran's current eye disability(ies)?  In addressing this question, the examiner should discuss the Veteran's contention that he suffers from a disability manifested by light sensitivity.

(b) For each eye disability diagnosed that is determined to be a congenital or developmental defect, is it at least as likely as not (50 percent or better probability) that such was aggravated beyond normal progression by the Veteran's service or that he developed a superimposed disability?

(c) For each eye disability diagnosed that is not determined to be a congenital or developmental defect (i.e., an acquired disability), is it at least as likely as not (50 percent or better probability) related to the Veteran's service?

(d) For each eye disability diagnosed that is not determined to be a congenital or developmental defect and is also not determined to be directly related to the Veteran's service, is it at least as likely as not (50 percent or better probability) caused or aggravated by his service-connected hypertension with headaches?

(e) For each eye disability diagnosed that is not determined to be a congenital or developmental defect and is also not determined to be directly related to the Veteran's service, is it at least as likely as not (50 percent or better probability) caused or aggravated by his migraine headaches?

The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given.  If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation.

8. 	After the above records request has been completed, to the extent available, arrange for the Veteran to be afforded an examination by an orthopedist to determine the nature and likely etiology of his claimed right elbow injury, back condition, cervical spine arthritis, bilateral shoulder condition, right ankle tendonitis, and bilateral knee disability other than service-connected patellofemoral pain syndrome of the right and left knees.  The Veteran's claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination.  Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the below questions.  

In providing the requested opinions, the examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given.  If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation.

The questions to be addressed by the examiner are:

Right elbow injury

(a) Has the Veteran been given a diagnosis of the right elbow at any point during the appeal period (i.e., from January 2010), to include during the current VA examination?

(b) If a right elbow disability has been diagnosed during the appeal period, is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include as due to his treatment for hyperextension of the right elbow/triceps head tendonitis therein?

Back condition and cervical spine arthritis

(c) Has the Veteran been given a diagnosis of the back and/or cervical spine at any point during the appeal period (i.e., from January 2010), to include during the current VA examination?

(d) If a back and/or cervical spine disability has been diagnosed during the appeal period, is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include his alleged injury to the lumbar and cervical spine therein?

In addressing this question, the examiner should also discuss the significance, if any, of a postservice motor vehicle accident wherein the Veteran was noted to have injured his back.  It is the Veteran's contention that he had a back condition prior to that event, and that the motor vehicle accident aggravated his preexisting back condition.

Bilateral shoulder condition

(e) Has the Veteran been given a diagnosis of a bilateral shoulder condition at any point during the appeal period (i.e., from January 2010), to include during the current VA examination?

(f) If a bilateral shoulder condition has been diagnosed during the appeal period, is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include as due his alleged injury to the bilateral shoulders therein?  The examiner should indicate whether the diagnosed disorders are consistent with the alleged injury mechanism.  

Right ankle tendonitis

(g) Has the Veteran been given a diagnosis of a right ankle condition at any point during the appeal period (i.e., from January 2010), to include during the current VA examination?

(h) If a right ankle condition has been diagnosed during the appeal period, is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include as due his alleged injuries to the right ankle therein?

(i) If a right ankle condition has been diagnosed during the appeal period but is not determined to be directly related to the Veteran's service, is it at least as likely as not (50 percent or better probability) caused or aggravated by his service-connected patellofemoral pain syndrome of the right and left knees?

Bilateral knee disability 

(j) Identify all bilateral knee diagnoses that the Veteran has been given during the appeal period (i.e., from January 2010), to include during the current VA examination, other than his service-connected patellofemoral pain syndrome of the right and left knees.  

In identifying the Veteran's current bilateral knee disabilities, the examiner should comment on the diagnoses already of record and/or claimed by the Veteran (e.g., tendonitis, arthritis, degenerative joint disease, osteoarthritis, bursitis, and arthralgia), expressing agreement or disagreement with those diagnoses, and explaining the rationale for the agreement or disagreement.  

(k) For each bilateral knee disability diagnosed (other than patellofemoral pain syndrome), is it at least as likely as not (50 percent or better probability) related to the Veteran's service, to include his treatment for knee-related issues therein? 

9. 	After the above development has been completed, review the file and ensure that all development sought in this remand is completed.  Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claims.  If any remain denied, the RO/AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, 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).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs