Citation Nr: 1756590 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-24 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Prior to January 3, 2012, entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to January 3, 2012. 3. Entitlement to service connection for a medial meniscal tear with a parameniscal cyst of the left knee. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD) and hiatal hernia, to include as secondary to PTSD. 6. Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to PTSD. 7. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD N. Brown, Associate Counsel INTRODUCTION The Veteran had active duty in the Army from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2008, May 2009, and September 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Augusta, Maine, and Detroit, Michigan. Jurisdiction of all of these issues was subsequently transferred to the RO in Detroit, Michigan. In a May 2008 statement in support of his claim, the Veteran requested consideration of his gastrointestinal conditions as secondary to his service-connected PTSD, and these issues have been recharacterized above. Additionally, in an August 2007 rating decision, the RO granted a temporary total evaluation of 100 percent for PTSD due to hospitalization for the period from November 30, 2006 to January 1, 2007. In a May 2016 rating decision, the RO granted an evaluation of 100 percent for PTSD effective January 3, 2012. Thus, these periods of time are not for consideration in this appeal and this is reflected above. In May 2011, the Board remanded the issue of PTSD to the Agency of Original Jurisdiction (AOJ), and this case has been returned for appellate consideration. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of PTSD and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's medial meniscal tear with a parameniscal cyst of the left knee did not begin during service, is not otherwise related to active duty, and did not exhibit within the first post-service year. 2. There is no current diagnosis of a back disability. 3. There is no current diagnosis of GERD and hiatal hernia. 4. There is no current diagnosis of IBS. 5. The Veteran's tinnitus had onset during active service. CONCLUSIONS OF LAW 1. A medial meniscal tear with a parameniscal cyst of the left knee was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. A back disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. GERD and hiatal hernia were not incurred in or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 4. IBS was not incurred in or aggravated by service or a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Laws and Regulations The Veteran contends that a medial meniscal tear with a parameniscal cyst of the left knee, a back disability, GERD and hiatal hernia, IBS, and tinnitus resulted from service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. In the absence of proof of a present disability due to disease or injury that occurred in service, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Medial Meniscal Tear with a Parameniscal Cyst of the Left Knee The Veteran contends that service connection is warranted for his left knee disability. The Veteran's service treatment records were absent of any diagnosis of a left knee disability during service. A left knee injury was not indicated in service. In a February 2008 statement, the Veteran stated that he had been roofing since he served in Vietnam, but his age finally caught up with him, and he indicated that his back and his knees were so bad that he could not do roofing anymore. In an October 2008 statement, the Veteran stated that his knee was "tore up" from 37 years of roofing. The first post-service diagnosis of a left knee disability is in a January 2007 VA treatment record, where the Veteran was diagnosed with an extensive degenerative type tear medial meniscus with large parameniscal cyst of the left knee. In an October 2007 VA treatment record, the physician stated that the Veteran reported stopping being a roofer due to his left knee problem. At no time did any of the Veteran's medical providers relate his left knee disability to his period of service. The Board has considered the Veteran's claim that his current left knee disability is related to service. However, the Veteran appears to relate his knee problems to his prior post-service occupation as a roofer. Further, the Veteran, as a lay person, has not been shown to be capable of making medical conclusions, especially as to the complex medical opinion such as the etiology of any current left knee disability, which is quite different from statements regarding the presence of scars or varicose veins which are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Thus, the Board finds that the weight of the evidence shows that service connection for a medial meniscal tear with a parameniscal cyst of the left knee during active service is not warranted, and the claim must be denied. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Back Disability The Veteran has asserted that he developed a back disability while in service. The Veteran's service treatment records were absent of any diagnosis of a back disability during service. A back injury was not indicated in service. As stated above in his February 2008 statement, the Veteran acknowledged that he had been roofing since serving in Vietnam, but his back and his knees had gotten so bad that he can't do roofing anymore. Post-service treatment records are negative for findings of a back disability. The Veteran, as a lay person, is competent to note what he experiences. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). In a May 2011 statement, the Veteran asserted that his back was jammed when his tank hit a mine, and his back had not been the same since. While the Veteran is competent to report his symptoms, he is not competent to provide a diagnosis of any disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In this circumstance, the Board gives more weight to the evidence that is negative for any findings of a current disability. Since the evidence does not show that the Veteran has this disability, the Board finds that the Veteran is not entitled to service connection. GERD and hiatal hernia, and IBS With respect to these claims for service connection, there is no evidence that the Veteran has any current disabilities. The Veteran has submitted no evidence to show the existence of any of these disabilities. Furthermore, service treatment records, as well as post-service treatment records, are negative for findings of any of these disabilities. In a January 2012 VA intestinal examination, the examiner found no diagnosis for an intestinal condition, to include GERD and hiatal hernia, and IBS. The Veteran, as a lay person, is competent to note what he experiences. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). In his May 2008 statement, the Veteran noted that he had diarrhea a lot. During his 2012 VA examination, he reported having diarrhea twice a week, abdominal cramping prior to loose stools, symptoms of reflux (heartburn) three to four times a week, and episodic bouts of diarrhea and heartburn "for as long as [he] can remember." While the Veteran is competent to report his symptoms, he is not competent to provide a diagnosis of any disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In this circumstance, the Board gives more weight to the evidence that is negative for any findings of a current disability. Since the evidence does not show that the Veteran has any of these disabilities, the Board finds that the Veteran is not entitled to service connection. As there is no current diagnosis of GERD and hiatal hernia or IBS, the Board does not reach the question of service connection secondary to PTSD. Tinnitus The Veteran seeks service connection for tinnitus which he contends is the result of noise exposure during service. In a May 2008 statement, the Veteran stated that during service he was exposed to M16/M60 machine guns, dusters (artillery piece with two guns on the front - alternating shots and firing grenades), and artillery, and that he rode on tanks which were firing all the time. He also asserted that he had a busted ear drum while in Vietnam and smoke came out of his ear, but he did not seek treatment because they were "on the DMZ and in combat." In an October 2008 lay statement, the Veteran reported that ever since Vietnam, he had a buzzing noise in his ears that was there all the time, and was sometimes bad enough to make the side of his head ache. The Veteran's service treatment records are devoid of reference to, complaint of, or treatment for, tinnitus. The Board notes that the Veteran was afforded a VA audiological examination in January 2012. The report reflects that the Veteran experienced a sudden/temporary loss of hearing, tinnitus, and earache following the firing of a tank in Vietnam. The examiner found that tinnitus was present, and asserted that it was less likely as not related to service and at least as likely as not a symptom associated with the Veteran's hearing loss that was acquired post service. The examiner noted that there was no evidence of problems with the Veteran's ear drums, ear drainage, or tinnitus during service. The Board finds that the evidence of record is at least in equipoise for a finding of service connection for tinnitus. First, there is a current disability, as the Veteran has provided competent testimony that indicates current tinnitus. Second, there is evidence of an in-service event, disease, or injury, as the Veteran provided competent testimony of in-service tinnitus. Finally, the most probative evidence of record demonstrates that tinnitus has been present since service, per the Veteran's testimony. See 38 C.F.R. § 3.303(a); Charles, 16 Vet. App. at 374; Shedden, 381 F.3d at 1167. Although the VA examination provides negative evidence, the Veteran explained the inconsistency regarding in-service treatment. Accordingly, based on the evidence and affording the Veteran all benefit of the doubt, the Board finds that the Veteran's tinnitus began during active service. Service connection for tinnitus is warranted. ORDER Service connection for a medial meniscal tear with a parameniscal cyst of the left knee is denied. Service connection for a back disability is denied. Service connection for GERD and hiatal hernia is denied. Service connection for IBS is denied. Service connection for tinnitus is granted. REMAND PTSD The Board, for reasons explained below, regrets that it must once again remand this claim for additional development. The Veteran asserts that he is entitled to an evaluation in excess of 50 percent for PTSD prior to January 3, 2012. In May 2011, the Board remanded the claim. The remand instructions requested that the Veteran undergo a VA examination to determine the current severity of his PTSD. This examination was to include a discussion of the impact of his PTSD on his occupational functioning, with the examiner specifically commenting as to whether or not the PTSD is of such nature and severity as to preclude any employment other than in a self-employed roofing business. While a May 2016 rating decision increased the evaluation of his PTSD to 100 percent, effective January 3, 2012, the Veteran has not been afforded an examination in accordance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the Veteran should be scheduled for a PTSD examination. TDIU A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a) (2017). A 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). The Veteran is currently in receipt of a 100 percent evaluation for his sole service-connected disability of PTSD, effective January 3, 2012. Therefore, the remaining period for consideration for TDIU is the period prior to January 3, 2012. The Board finds that the Veteran's claim for a TDIU prior to January 3, 2012 is inextricably intertwined with the claim for an increased rating for PTSD prior to January 3, 2012. The assigning of a higher disability rating for the Veteran's anxiety disorder would potentially affect the issue of whether the Veteran was unemployable due to his service-connected PTSD for the period under consideration. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180. Any outstanding VA medical records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. After receiving the necessary authorization, obtain and associate with the claims file all of the Veteran's relevant outstanding private and VA Medical Center treatment records. If after making such a request, a negative response is received, this must be documented in the claims file and the Veteran must be properly informed. 2. After any additional records are associated with the claims file, the Veteran must be afforded a VA psychiatric examination to determine the severity of his service-connected PTSD prior to January 3, 2012. The entire electronic claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must comment on the severity of the PTSD and report all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant DBQ. The examiner must also describe the Veteran's symptoms and note the functional impairment of the Veteran's service-connected PTSD. The examiner must specifically comment as to whether or not, for the period under consideration, the PTSD is of such nature and severity as to preclude any employment other than in a self-employed roofing business. An explanation for all opinions expressed must be provided. 3. Review all examination reports to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs