Citation Nr: 1727427 Decision Date: 07/14/17 Archive Date: 07/25/17 DOCKET NO. 14-33 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a rating in excess of 10 percent for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for chronic lymphocytic leukemia claimed as the result of exposure to contaminated water at Camp Lejeune, North Carolina. 4. Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder, to include as secondary to lymphocytic leukemia. 5. Entitlement to service connection for a foot skin condition claimed as jungle rot. 6. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: J. Michael Woods, Esq., WOODS & WOODS, LLP ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1979 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2013 and June 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating, the Board has jurisdiction of this issue on appeal as part of the Veteran's claim for an increased tinnitus rating and has modified the issues on appeal accordingly. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's service-connected bilateral tinnitus is assigned the maximum rating authorized under Diagnostic Code 6260. 2. The Veteran does not have hearing loss for VA purposes. 3. The Veteran served at Camp Lejeune, North Carolina for over thirty days. 4. The Veteran was subsequently diagnosed with chronic lymphocytic leukemia. 5. The Veteran's depressive disorder is proximately due to or the result of his service connected lymphocytic leukemia. 6. The more probative evidence fails to demonstrate that the Veteran has a current foot skin condition, to include jungle rot. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. §1155 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.87, Diagnostic Code (DC) 6260 (2016). 2. The criteria for the establishment of service connection for hearing loss are not met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.385 (2016). 3. The criteria for service connection for chronic lymphocytic leukemia have been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.326(a). 4. The criteria for the establishment of service connection for an acquired psychiatric disorder to include major depressive disorder, to include as secondary to lymphocytic leukemia have been met. 38 U.S.C.A. §§ 1101, 1131, 1134(a), 5107; 38 C.F.R. §§ 3.303. 5. The criteria for the establishment of service connection for a foot skin condition claimed as jungle rot are not met. 38 U.S.C.A. §§ 1101, 1131, 1134(a), 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION DUTIES TO ASSIST AND NOTIFY VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist, and the Veteran and his representative have not raised any procedural arguments regarding the notice or assistance provided in this case. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board notes that the Veteran has not been scheduled for or provided with a VA examination for the claim of entitlement to service connection for his foot skin condition claim. However, as will also be discussed in more detail below, an examination or opinion is not necessary due to a lack of credible lay or medical evidence that would indicate that the Veteran has the a current foot skin condition. Additionally, there is no credible lay or medical evidence of symptoms continuing since service, nor is there an indication that links these claimed disorders to the Veteran's military service. Accordingly, no VA examinations are not warranted for this claim. MERITS OF THE CLAIM I. INCREASED RATING CLAIM - TINNITUS The Veteran seeks an increased rating for his service-connected tinnitus, for which he is currently receiving a 10 percent rating under DC 6260. This diagnostic code allows for a single 10 percent disability rating for tinnitus regardless of whether it is unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). No higher disability rating is available under the Rating Schedule. Accordingly, as there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear or otherwise increase the Veteran's total compensation for his service connected tinnitus, his claim for an increased rating must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. SERVICE CONNECTION CLAIMS A. RELEVANT LAW AND REGULATIONS GOVERNING SERVICE CONNECTION The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may also be granted on a secondary basis. Secondary service connection will be awarded when it is shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. See 38 C.F.R. § 3.310 (a) (2015); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For a Veteran who served at Camp Lejeune, North Carolina, for no less than 30 days (either consecutive or non-consecutive) between August 1, 1953, and December 31, 1987, service connection can also be granted for certain conditions under a presumption. Specifically, such a Veteran shall be presumed to have been exposed to contaminants in the facility's water supply unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. If a veteran was exposed to contaminants in the water supply at Camp Lejeune during military service; the exposure meets the requirements of 38 C.F.R. § 3.307 (a)(7); and adult leukemia, including chronic lymphocytic leukemia, becomes manifest to a degree of 10 percent or more at any time after service, service connection shall be established even though there is no record of such disease during service, subject to the rebuttable presumption provisions of 38 C.F.R. § 3.307(d). See generally 38 U.S.C.A. §§ 1101, 1112, 1113, 5107; 38 C.F.R. §§ 3.307, 3.309. B. BILATERAL HEARING LOSS The probative evidence of record fails to demonstrate that the Veteran has a current hearing loss disability as required by VA regulations. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran underwent a VA hearing loss examination in September 2013 which failed to show impaired hearing as required by VA regulations. Specifically the examination did not show an auditory threshold of 40 dB or greater at any range tested, nor did it show a threshold of 26 dB or greater for at least three frequencies of 500, 1,000, 2,000, 3,000, or 4,000. With respect to Maryland CNC Test results, the Veteran had a score of 100 percent in both ears. The examiner did note that the Veteran may have hearing loss outside the frequencies considered by VA regulations and that the Veteran may have had a significant change in hearing threshold while in service, this did not demonstrate a current hearing loss within the tested range. See September 2013 VA Hearing Loss examination report. As noted above, a current disability is required to qualify for service connection. VA regulations specifically define what constitutes hearing loss disability for purposes of service connection. Based upon the probative and credible medical evidence of record, the Board finds that the Veteran does not have a current hearing loss disability and accordingly service connection for hearing loss is denied. C. LEUKEMIA The fact that the Veteran was at Camp Lejeune for at least the required minimum time frame is not subject to reasonable dispute. See September 2013 Rating Decision. Additionally, there is ample evidence in the record that the Veteran has lymphocytic leukemia. Accordingly, service connection may be granted on a presumptive basis based on exposure to contaminants at Camp Lejeune. The Board notes that it has also reviewed the medical evidence submitted by the Veteran through his attorney. Since the Board can grant service connection on a presumptive basis it need not address this evidence in more detail, but the Board does note that this evidence further supports a grant of service connection, and that the Board appreciates the submission. Similarly, the Board need not address the negative nexus opinion from the July 2013 VA medical examination because the presumption overrides the medical conclusion regarding Camp Lejeune and Leukemia. D. ACQUIRED PSYCHIATRIC DISORDER TO INCLUDE MAJOR DEPRESSIVE DISORDER, TO INCLUDE AS SECONDARY TO LYMPHOCYTIC LEUKEMIA. The Board finds that the Veteran's depressive disorder is proximately due to or the result of his service connected lymphocytic leukemia. The Veteran has submitted an opinion from Dr. H.H.G. where the doctor opined that the Veteran's chronic lymphocytic leukemia is more likely than not causing his depressive disorder. The doctor's opinion provides a comprehensive review of the Veteran's symptoms, her impressions and conclusions based upon her examination of the Veteran, as well as a discussion of the supporting literature that supports the doctor's opinion. The Board finds the doctor's opinion highly probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Since the Board has granted service-connection for leukemia in this opinion, and the private opinion shows that the Veteran's leukemia more likely than not causes his depressive disorder, the requirements for secondary service connection for an acquired psychiatric disorder to include major depressive disorder have been met. E. JUNGLE ROT- FOOT SKIN CONDITION The Board finds there is currently no probative evidence that the Veteran has a present foot skin condition to include jungle rot. A review of the Veteran's service treatment records shows that in August 1981 the Veteran was treated for a foot fungus, however there is no indication that the treatment was not successful, or that the condition subsequently reappeared. Post-service treatment records are negative for any signs, symptoms, or treatment for a foot skin condition. The Veteran's private medical records do not show any indication that the Veteran has any foot skin abnormalities or conditions. Additionally, the Board notes that the while the Veteran's representative has presented strong supporting evidence in favor of the leukemia and depression claim, including independent medical examinations, no such evidence of a present foot skin disability were found. While the Veteran is certainly competent to report symptoms of a present foot skin condition, the Board notes that the Veteran has not done so in this case. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A review of the record shows only that the Veteran indicated on his May 2012 application that he was applying for benefits for "Jungle Rot." The Veteran did not elaborate that he had a present condition or that it any condition had continued since service. Presently, there is simply nothing in the record to suggest that the Veteran has a current foot skin condition or that the Veteran claims any such present condition is related to his military service. As discussed above, a present disability is an element of a claim for service connection. Without an indication that this element can be satisfied, the Board finds that the requirements for entitlement to service connection have not been met. Although the Board is grateful for the Veteran's honorable service, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. However, here there is simply no evidence to weigh as to a present foot skin disability or a link of any such disability to service. Therefore, the Veteran's claims for service connection must be denied and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER A rating in excess of 10 percent for tinnitus is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for chronic lymphocytic leukemia is granted. Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder, to include as secondary to lymphocytic leukemia is granted. Entitlement to service connection for a skin disorder of the feet is denied. REMAND Although the Board sincerely regrets the additional delay that will result from remanding the remaining claim, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Federal Circuit has held that once a claimant (1) submits evidence of a medical disability, (2) makes a claim for the highest rating possible, and (3) additionally submits evidence of employability, the VA must consider TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part and parcel of an increased-rating claim only when the Roberson requirements are met). In the present case, the Veteran has raised a TDIU claim by asking for an increased rating on his tinnitus claim and by submitting evidence of unemployability in the form of a report by Dr. H.H.G who opined that the Veteran has difficulty sustaining substantially gainful employment due to his depressive disorder and leukemia. The Board has denied the Veteran's increased rating claim for tinnitus as the Veteran is already at the maximum rating possible. However, the Board has granted service connection for leukemia and depressive disorder. Adjudication of the Veteran's request for TDIU is inextricably intertwined with the Veteran's pending ratings for the newly service connected claims and the issue of TDIU remains before the Board. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a) (2015). The Court has held that, when a Veteran does not meet the schedular requirements of 4.16(a), then a TDIU rating may be assigned under 4.16(b). While the Veteran does not currently meet the schedular requirements for TDIU, the Veteran may after the RO assigns ratings for his newly service connected conditions. Accordingly, the Board also finds that adjudication of the TDIU request must be placed on hold until the RO assigns the Veteran's new ratings and then the TDIU request must be readjudicated. See Harris, 1 Vet. App. 183 (1991). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA medical records. 2. Ask the Veteran to identify any private medical care providers who treated him for his service-connected disabilities. After securing any necessary authorization, obtain records from any identified providers. 3. Ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 4. After completing the above development and assigning the Veteran the appropriate ratings for disabilities service connected in this opinion and any additional development deemed necessary, readjudicate the remanded issue. Please note the Veteran has submitted evidence of unemployability in the form of a January 2016 report by Dr. H.H.G who opined that the Veteran has difficulty sustaining substantially gainful employment due to his depressive disorder and leukemia. 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). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs