Citation Nr: 1802986 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-28 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include cognitive disorder, organic anxiety disorder, and dementia. 3. Entitlement to an initial compensable rating for left ear hearing loss. 4. Entitlement to an initial compensable rating for right ear hearing loss. 5. Entitlement to an initial rating in excess of 10 percent for tinnitus. 6. Entitlement to a rating in excess of 40 percent for residuals of a fractured pelvis with sciatic neuropathy and right knee limitation. 7. Entitlement to a rating in excess of 10 percent for residuals of a traumatic brain injury (TBI). 8. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John V. Tucker, Attorney ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107 (a) (2) (West 2014). The Veteran had active service from May 1958 to April 1960. This matter comes before the Board of Veterans' Appeals (Board) from July 2010, October 2010, and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a May 2016 rating decision, the RO granted the Veteran's claims for service connection for cold injury residuals for the upper and lower extremities. The issue of service connection for these disabilities is no longer in appeal status. The case was remanded in June 2014 and February 2016 for evidentiary development. In addition to the matters noted above, the Veteran has filed a notice of disagreement with the assigned disability ratings for cold injury residuals of the upper and lower extremities. The electronic record indicates that the Agency of Original Jurisdiction (AOJ) is taking action on these issues. Although the matters are within the Board's jurisdiction, they have not been certified for appellate review and the Board will not undertake review of the matters at this time. If the matters are not resolved in the Veteran's favor, the RO will certify the matters to the Board, which will undertake appellate review of the RO's action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (2016) (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. The issue of entitlement to higher ratings for bilateral hearing loss, tinnitus, fractured pelvis residuals, and TBI residuals, and entitlement to 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 left knee disability was not incurred in service. 2. The Veteran's acquired psychiatric disorder was not incurred in service nor is otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2017). 2. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain disorders, listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, also diagnosed as degenerative joint disease, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must 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 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Left Knee disability VA treatment records indicate the Veteran's left knee was diagnosed with osteoarthritis in 2005, and degenerative joint disease (DJD), a lateral meniscus tear and partial anterior cruciate ligament tear in February 2011. Service treatment records (STRs) indicate the Veteran was involved in a motor vehicle accident (MVA) in September 1959, when he fractured his pelvis and experienced a cerebral concussion. During his hospitalization, the Veteran's left leg demonstrated a thigh contusion (bruise) and a calf abrasion (scrape). X-rays revealed his left knee demonstrated moderate lipping of his patella but no fracture. The Veteran contends in addition to the injuries sustained in the MVA, he fell off a tank during icy weather. He reported he was given an ACE bandage by the field medic and told to return to the field. STRs indicate the Veteran reported falling off a tank in October 1958, and injuring his left ankle. He was given an ACE bandage and assigned light duty for one week. There are no documented complaints, diagnoses or treatments for a left knee condition in service. At the March 2017 VA medical examination, the Veteran reported instability, weakness, lack of endurance, and pain. The examiner noted the Veteran's left knee weakness and atrophy were due to "disuse" and a history of polio as a child which affected both legs. The examiner also noted the Veteran's meniscus tear and pain were due to his DJD. The examiner opined there was no significant left knee injury at the time of the in-service MVA. She also opined the major contributing factor to the Veteran's DJD was his obesity, noting that the Veteran's DJD developed in a "symmetrical fashion, as one would expect in a patient with a significant history of obesity." The preponderance of the evidence is against service connection for a left knee disability. The probative medical evidence indicates the Veteran's current left knee disability was not incurred in service, but was related to his age and history of obesity. In addition, his DJD was not diagnosed within the first year after his discharge from service. The Veteran has continuously indicated throughout the appeal that his current left knee disability is a result of his fall from a tank while in-service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current left knee disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Degenerative joint disease requires specialized training for determinations as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his in-service injuries. Since the Veteran's current left knee disability was not related to service, nor diagnosed within the presumptive period after discharge, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Acquired Psychiatric disability Private and VA treatment records indicate the Veteran was diagnosed with adjustment disorder in August 2010 and organic anxiety disorder and dementia in September 2010. The Veteran's April 1958 report of medical examination at induction indicates a clinically normal psychiatric evaluation. STRs do not indicate any complaints, diagnoses or treatments for a mental health condition in service. At the June 2010 VA medical examination, the Veteran reported anxiety, seizures, tremors, lack of concentration and possible mini-strokes. The examiner noted the Veteran's cognitive symptoms began after the Veteran's heart attack in 1985. The examiner also noted that after the in-service MVA, the Veteran was able to regain his ability to learn and process information sufficiently to have a career as a typist until he retired in 1985 due to heart-related problems. The examiner diagnosed the Veteran with cognitive disorder not otherwise specified (NOS) and opined that Veteran's cognitive impairment was "likely the result of medical or vascular disease processes and not TBI as his problems with memory and concentration are more recent manifestations." At the May 2011 VA medical examination, the Veteran reported anxiety, but denied depression. The same examiner from the June 2010 VA medical examination noted that the Veteran denied problems accepting his medical limitations, and reported aggravation and anxiety when dealing with the VA. The examiner diagnosed the Veteran with cognitive disorder NOS, and opined the Veteran's cognitive disorder was not a residual of the Veteran's TBI but likely the result of his medical or vascular disease processes because the Veteran's memory and concentration problems were recent manifestations. At the March 2017 VA medical examination, a different examiner diagnosed the Veteran with major neurocognitive disorder secondary to vascular disease, and noted that cognitive testing was consistent with dementia. She also noted that the Veteran did not demonstrate an anxiety disorder, and that he denied symptoms of depression. The examiner noted the Veteran had multiple risk factors for vascular dementia and that his dementia was progressing. She opined that the Veteran's dementia was due to vascular disease and/or risk factors. The preponderance of the evidence is against finding service connection for an acquired psychiatric condition. The probative medical evidence indicates the Veteran's cognitive disorder and dementia were not incurred in service, nor are secondarily due to his in-service TBI, but rather due to his cardiac and vascular diseases and processes. The Veteran does not have a current diagnosis of anxiety, and the Veteran denied a current diagnosis of depression. The Board notes the September 2010 opinion of a private psychiatrist, who noted the Veteran demonstrated symptoms "consistent with organic anxiety disorder as a result of a head injury in 1959" and that the Veteran demonstrated "signs and symptoms consistent with dementia" which he opined were "related to the head injury." This opinion is conclusory and does not provide the Board with sufficient analysis to consider and weigh her opinion. It does not account for the Veteran's post-service medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). In comparison, the June 2010, May 2011, and March 2017, medical opinions are highly probative. Both examiners reviewed the record for any fact-based objective evidence of symptoms related to an acquired psychiatric condition during and after service, and acknowledged the Veteran's lay statements regarding the onset and frequency of symptoms, and the circumstances of the Veteran's military service. Since the Veteran's current cognitive disorder and dementia were not related to service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a left knee disability is denied. Service connection for an acquired psychiatric disorder, to include cognitive disorder, organic anxiety disorder, and dementia, is denied. REMAND In February 2016, the Board remanded the Veteran's tinnitus rating claim, requesting that the RO refer the matter to the Director of Compensation Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321 (b). The RO did not refer the matter, and therefore did not substantially comply with the February 2016 directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends he is unable to secure and follow a substantially gainful occupation because of the combined effect of his service-connected disabilities. Since the Board must remand the Veteran's extraschedular claim for tinnitus, the Board must also remand the claims for higher ratings for residuals of a fractured pelvis, residuals of a TBI, and bilateral hearing loss, because they are inextricably intertwined with the issue of TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request the Veteran provide any additional relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. REFER THE ISSUE OF ENTITLEMENT TO AN INITIAL RATING in excess of 10 percent for tinnitus on an extraschedular basis to the Director, Compensation Service, for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321 (b). 4. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The appellant 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 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 (West 2014). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs