Citation Nr: 1803860	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO. 14-03 653	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to an initial increased evaluation in excess of 10 percent for anxiety disorder.

2. Entitlement to an initial compensable evaluation for basal cell cancer of the nose.

3. Entitlement to an initial compensable evaluation for arthritis, facet joint L5-S1.

4. Entitlement to service connection for a left shoulder disability 

5. Entitlement to service connection for a left ankle disability.

6. Entitlement to service connection for a right ear hearing loss disability.

7. Entitlement to service connection for a left ear hearing loss disability.

8. Entitlement to service connection for tinnitus.

9. Entitlement to service connection for hypertriglyceridemia.

10. Entitlement to service connection for a disability manifested by a chronic cough.

11. Entitlement to service connection for skin problems, other than basal cell cancer of the nose.

12. Entitlement to service connection for a right ankle disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from August 1985 to January 1986, January 2005 to January 2006, and March 2009 to March 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The July 2011 rating decision deferred the issue of service connection for heart disease (cardiomegaly), and later denied service connection in a December 2011 rating decision. The Veteran has not appealed the December 2011 rating decision.

The issue of entitlement to service connection for a right ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran failed, without good cause, to report for a scheduled VA examination on July 13, 2016 in conjunction with a claim for entitlement to an increased evaluation for anxiety disorder.

2. The Veteran failed, without good cause, to report for a scheduled VA examination on July 13, 2016 in conjunction with a claim for entitlement to an increased evaluation for basal cell cancer of the nose.

3. The Veteran failed, without good cause, to report for a scheduled VA examination on July 13, 2016 in conjunction with a claim for entitlement to an increased evaluation for arthritis, facet joint L5-S1.

4. The Veteran did not incur a left shoulder disability during a period of active duty service. The Veteran's left shoulder disability was not continuous from an applicable period of active duty service, and did not manifest to a compensable degree within one year of an applicable period of active duty service.

5. The Veteran did not incur a left ankle disability during a period of active duty service.

6. The Veteran's right ear hearing loss disability is related to service.

7. The Veteran's left ear hearing loss is not a hearing loss disability for which VA benefits can be granted.

8. The Veteran's tinnitus is related to service.

9. Findings of hypertriglyceridemia constitute laboratory findings of elevated triglycerides and are not a disease or disability for which VA benefits can be granted.

10. The Veteran does not have a current diagnosis of a respiratory disability.

11. The Veteran does not have a current diagnosis of a skin disability.


CONCLUSIONS OF LAW

1. The claim for entitlement to entitlement to an initial increased evaluation in excess of 10 percent for anxiety disorder is denied on the basis of failure to report for a VA medical examination. 38 U.S.C. § 501 (2012); 38 C.F.R. § 3.655(b) (2017).

2. The claim for entitlement to an initial compensable evaluation for basal cell cancer of the nose is denied on the basis of failure to report for a VA medical examination. 38 U.S.C. § 501 (2012); 38 C.F.R. § 3.655(b) (2017).

3. The claim for entitlement to an initial compensable evaluation for arthritis, facet joint L5-S1 is denied on the basis of failure to report for a VA medical examination. 38 U.S.C. § 501 (2012); 38 C.F.R. § 3.655(b) (2017).

4. The criteria for a grant of service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017)

5. The criteria for a grant of service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017)

6. The criteria for a grant of service connection for a right ear hearing loss disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017).

7. The criteria for a grant of service connection for a left ear hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017).

8. The criteria for a grant of service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

9. The criteria for a grant of service connection for hypertriglyceridemia are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

10. The criteria for a grant of service connection for disability manifested by a chronic cough are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

11. The criteria for a grant of service connection for skin problems, other than basal cell cancer of the nose, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify 

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

II. Failure to appear for examinations

In September 2010, the Veteran submitted original claims for service connection for a psychiatric disorder, claimed as posttraumatic stress disorder, skin cancer, for a low back disability, a hearing loss disability, tinnitus, a right ankle disability, a left ankle disability, a left shoulder disability, a skin problem disability (other than skin cancer), and a disability manifested by a chronic cough.

In May 2011, the Veteran was scheduled for multiple examinations in connection with his claims for service connection and increased rating; however, he failed to report for these examinations.

In a July 5, 2011 rating decision, the RO granted service connection for anxiety disorder, skin cancer as basal cancer of the nose, and arthritis, facet joint L5-S1 and granted service connection. The RO noted that the Veteran had failed to appear for multiple VA examinations, and that his claims would be decided based upon the available record.

In a July 28, 2011 statement, the Veteran stated that he had not received notification for his examinations, and if he had received notice, he would have attended the examinations in furtherance of his claims.

On November 4, 2011, the Veteran was scheduled for new examinations related to claims for entitlement to service connection for a bilateral hearing loss disability, tinnitus, a right ankle disability, a left ankle disability, a left shoulder disability, a skin disability (other than skin cancer), and a disability manifested by a chronic cough. The Veteran appeared for these examinations and they are discussed below.

On June 28, 2016, the Veteran was rescheduled for VA examinations related to his service-connected skin disease, back disability, and psychiatric disorder. The Veteran again did not appear for these examinations, which were scheduled in July 2016, and they were cancelled.

Pursuant to the Veteran's claim for benefits, the Agency of Original Jurisdiction (AOJ) scheduled VA examinations for the Veteran, although the Veteran ultimately failed to appear for the examinations.

With respect to the Veteran's failure to report for examinations, the Court has held that the burden is upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Here, there is no indication in the record that notification of the June 28, 2016 examinations were not received. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). The Board notes that the Veteran has lived at the same address throughout the appeal period. 

As of this date, VA has not received any mail addressed to the Veteran that has been returned as undeliverable. The Veteran has received VA correspondence in relation to other disability claims and has regularly responded to communications, attended VA examinations, and sought treatment at VA facilities in connection with those claims. This evidence indicates that the Veteran is receiving VA communications and acting in accordance with them. Thus, the Board finds that no further development needs to be taken to schedule the Veteran for VA examinations in relation to these claims for increased ratings. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); 38 C.F.R. § 3.655(a), (b). Additionally, the Veteran has not provided any explanation for why he failed to report for the examinations.

The June 2016 supplemental statement of the case (SSOC) informed the Veteran of his failure to report and that there was no evidence showing of good cause in the record for his failure to report. The SSOC also laid out the provisions for failure to report for a VA examination, including that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. In short, the evidence shows that the Veteran failed without good cause to report for his VA examinations, and he has not expressed a willingness to appear for a VA examination. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.

Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(b) provides, when a claimant fails to report for an examination scheduled in conjunction with a claim for increase or a reopened claim for a benefit which was previously disallowed, the claim shall be denied.

As the Veteran failed to report for examinations as scheduled for his claims for increased rating claims, and he has not provided evidence of good cause for failing to appear nor expressed a willingness to appear for an examination, denial of the claims based on the application of 38 C.F.R. § 3.655(b) is warranted.

Therefore, the claims for increased ratings for anxiety disorder, basal cell cancer of the nose, and arthritis, facet joint L5-S1, are denied as a matter of law.

III. Service Connection 

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. 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).

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 shoulder disability 

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a left shoulder disability on either a direct or presumptive basis. The reasons follow.

The Veteran has been diagnosed with a left shoulder disability, and thus there is evidence of a current disability. For example, in a November 2011 VA examination for his shoulder, the Veteran was diagnosed with degenerative joint disease (DJD) and tendonitis of the left shoulder.

However, as to direct service connection, the Veteran's claim fails on both the in-service disease or injury and the nexus to service. For example, as to in-service disease or injury, the Veteran claims that he injured his shoulder in 2001 during martial arts training in Salt Lake City, Utah. However, the Veteran's periods of active duty are August 1985 to January 1986, January 2005 to January 2006, and March 2009 to March 2010. Disabilities incurred during reserve duty (versus a period of active duty for training or inactive duty training during reserve duty) are not eligible for service connection. As the Veteran states that the injury occurred in 2001, and the closest periods of eligible service are 1986 and 2005, the evidence weighs against a finding that the Veteran's shoulder disability was incurred during service.

As to a nexus to service, the Veteran reported during his November 2011 VA examination and in his service medical records that his injury occurred in 2001 during martial arts training exercise, and tends to establish that a left shoulder disability did not have its onset during an applicable period of service. The Board accords high probative value to these reports by the Veteran, as the Veteran has maintained that his injury occurred in 2001 on multiple occasions. As the injury is reported to have been incurred during duty in the reserves, this evidence tends to weigh against a finding of a nexus to active duty service.

Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). The Veteran currently has degenerative joint disease, and degenerative joint disease is a form of arthritis, which is a chronic disease listed under 38 C.F.R. § 3.309(a); thus, 38 C.F.R. § 3.303(b) is applicable. 
 
Additionally, where a veteran served 90 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, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. See Combee, 34 F.3d at 1043.

Given the above evidence, the Board finds that the Veteran did not incur an event, injury, or disease related to his current DJD during a period of active duty service and that his DJD of the left shoulder did not manifest during service or within one year of separation from a period of active duty service. The evidence does not support symptoms related to DJD that were recorded or incurred during active duty service. 
 
The evidence of record does not demonstrate that the Veteran's symptoms have been continuous since separation from active duty service in 1986. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker, 718 F.3d at 1340. Furthermore, the Veteran mentions in his reserve duty service records that he incurred the injury several years before his 2005 to 2006 period of active duty. As the Veteran has stated on multiple occasions that his injury occurred in 2001, which was during a period of reserve duty, this tends to establish that the Veteran's disability is attributable to an intercurrent cause, and not to active duty service.

In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a left shoulder disability. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49, 53; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

B. Left ankle disability

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a left ankle disability. The reasons follow.

The Veteran has been diagnosed with a left ankle disability, and thus there is evidence of a current disability. For example, during a November 2011 VA examination the Veteran was diagnostic with a chronic bilateral ankle sprain.

However, as to direct service connection, the Veteran's claim fails on both the in-service disease or injury and the nexus to service. Service treatment records show injuries to the left ankle in March 1997 and March 2003, however these injuries occurred during periods of reserve duty, and not during an active period of service. As mentioned above, the Veteran has only three periods of active duty service in his records, from August 1985 to January 1986, from January 2005 to January 2006, and from March 2009 to March 2010. Service records show an injury to the right ankle in 1985 during active duty service, however the fact that the Veteran was only diagnosed with a right ankle injury indicates that there were no other injuries, and tends to weigh against a finding of a left ankle injury during that period of active duty service.

As to a nexus to service, since the Veteran's injuries to the left ankle originally occurred during periods of reserve duty, and not active service, so the Veteran's disability cannot be related to an applicable period of active duty.

In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a left ankle disability. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49, 53; Ortiz, 274 F.3d 1361.

C. Hearing Loss

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is for the award of service connection for a right ear hearing loss disability and against the award of service connection for a left ear disability. The reasons follow.

The Veteran has been diagnosed with a right ear hearing loss disability, and thus there is evidence of a current disability. For example, the Veteran attended a VA examination in connection with his hearing loss on November 4, 2011, and was diagnosed with sensorineural hearing loss (SNHL) in the right ear. However, the Veteran also found to have SNHL in the left ear only in frequency ranges above 6000 Hz. At this range, the Veteran may have impaired hearing, but it does not meet the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385.

As to service connection, the Veteran's claim demonstrates the necessary elements for both the in-service disease or injury and the nexus to service. The service treatment records show that the Veteran specifically complained of hearing loss problems in 2005. The Veteran's complaints of hearing loss problems in service are evidence in favor of a finding that he had hearing loss in service. Furthermore, during the Veteran's separation examination in 2009, a threshold shift in the right ear was demonstrated, as hearing loss problems at frequencies above 6000 Hz in the left ear. This is evidence of a right ear hearing loss in service.

As to a nexus to service, the November 2011 VA examiner opined that the Veteran's hearing loss was as least as likely as not caused by service. The examiner noted that the Veteran's profession after service did not involve exposure to noise. This evidence tends to establish that an intervening cause of hearing loss is not responsible for the Veteran's hearing loss.

In sum, the Board concludes that the evidence of record supports the Veteran's claim for service connection for a right ear hearing loss disability, and the preponderance of the evidence is against a claim for service connection for a left ear hearing disability, for the reasons laid out above. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49, 53; Ortiz, 274 F.3d 1361.

D. Tinnitus 

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is for the award of service connection for tinnitus. The reasons follow.

The Veteran has been diagnosed with tinnitus, and thus there is evidence of a current disability. For example, the Veteran attended a VA examination in connection with his tinnitus on November 4, 2011, and was diagnosed with tinnitus.

As to service connection, the Veteran's claim demonstrates the necessary elements for both the in-service disease or injury and the nexus to service. The service treatment records show that the Veteran specifically complained of ringing in the ears in 2005 and 2006. The Veteran's complaints of ringing in the ears in service are evidence in favor of a finding that he had tinnitus in service.

As to a nexus to service, the November 2011 VA examiner opined that the Veteran's tinnitus was as least as likely as not caused by service, and cited a specific combat injury that was the likely etiology.

In sum, the Board concludes that the preponderance of the evidence of record supports the Veteran's claim for service connection for tinnitus.

E. Hypertriglyceridemia

After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for hypertriglyceridemia. The reasons follow.

Hypertriglyceridemia is a term to describe elevated triglyceride in the blood. Dorland's Illustrated Medical Dictionary at 832 (30th Ed. 2003). It is not a disease, injury, or disability for VA compensation purposes, even though it may be considered a risk factor in the development of certain diseases. See 61 Fed. Reg. 20440, 20445 (May 7, 1996) (providing that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.). Although hypertriglyceridemia may be evidence of an underlying disability or may later cause disability, service connection may not be granted for the laboratory finding itself. The law does not provide benefits for elevated laboratory findings without a disability, so the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


F. Chronic cough

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a disability manifested by a chronic cough. The reasons follow.

The Veteran has been not been diagnosed with a respiratory disability, and the preponderance of the evidence does not establish a current disability. For example, on a November 2011 VA examination in connection with the Veteran's respiratory conditions, the examiner stated the Veteran does not have a current diagnosis of a respiratory condition, nor has he previously ever been diagnosed with one. The Veteran admitted that after service his symptoms have subsided and he is not currently being treated for his cough. The November 2011 examiner did not prescribe any treatment for the Veteran's symptoms. The fact that the Veteran stated his symptoms decreased and that he is not undergoing treatment for his symptoms tends to weigh against a finding of a current diagnosis of a respiratory disability. Private medical examinations from 2007 and 2010 showed unremarkable results, except for a December 2010 CT scan which may have been a diagnostic error. The November 2011 examiner stated he could not diagnose a respiratory condition without repeat testing. This evidence also weighs against a diagnosis of a respiratory disability.

As to service incurrence, the Veteran's service records also do not support the diagnosis of a disability related to the Veteran's coughing symptoms. The Veteran's records show complaints of a cough in 2005. The Veteran contends that he was seen for a cough several times during service, and was treated with cough medication. The Veteran states that this did not resolve his cough and other medications were prescribed. While the Veteran's service records indicate complaints of a cough in 2005, the Veteran did not complain of cough-related symptoms during his separation examination in October 2005. Furthermore, the preponderance of the evidence does not support complaints of a cough during the Veteran's third tour of duty, from 2009 to 2010. While the Board acknowledges the Veteran's complaints of a cough during service, symptoms alone are not sufficient to establish a diagnosis of a respiratory disability in service. 

Without competent evidence of a current disability due to disease or injury, service connection for a disability is not warranted. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Symptoms, such as coughing, without an underlying disease or injury, cannot meet the regulatory requirement for the existence of a current disability. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Because a medical professional has determined that the Veteran's chronic cough is not indicative of a current disability due to disease or injury, the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the Veteran's claim is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56.

G. Skin problems, other than basal cell cancer of the nose

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a skin disability, other than basal cell cancer of the nose. The reasons follow.

The Veteran has been not been diagnosed with a skin disability (other than basal cell cancer of the nose). For example, on a November 2011 VA examination in connection with the Veteran's respiratory conditions, the examiner stated the Veteran does not have a current diagnosis of a skin disability, nor has he previously ever been diagnosed with one. During the examination, the Veteran reported having moles removed, however his private examiner told him that the moles were "age related."

Although the Veteran alleges that he developed areas of discoloration on his nose and ears during his 2005-2006 deployment, the preponderance of the evidence does not support complaints of skin symptoms in service. During the Veteran's separation examination in October 2005, the Veteran complained of weakness and fevers, but did not mention any complaints related to his skin. The fact that the Veteran mentioned other issues, but did not mention skin problems, tends to weigh against a finding of skin problems during service.

Without evidence of a current disability due to disease or injury, service connection for a disability is not warranted. Brammer, 3 Vet. App. 223; Gilpin, 155 F.3d 1353. Symptoms, such as moles, without an underlying disease or injury, cannot meet the regulatory requirement for the existence of a current disability. See Sanchez-Benitez, 259 F.3d 1356. Because a medical professional has determined that the Veteran's skin examination is not indicative of a current disability due to disease or injury, the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the Veteran's claim is denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56.


ORDER

Entitlement to an initial increased evaluation in excess of 10 percent for anxiety disorder is denied.

Entitlement to an initial compensable evaluation for basal cell cancer of the nose is denied.

Entitlement to an initial compensable evaluation for arthritis, facet joint L5-S1 is denied.

Entitlement to service connection for a left shoulder disability is denied.

Entitlement to service connection for a left ankle disability is denied.

Entitlement to service connection for a right ear hearing loss disability is granted.

Entitlement to service connection for a left ear hearing loss disability is denied.

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for hypertriglyceridemia is denied.

Entitlement to service connection for a disability manifested by a chronic cough is denied.

Entitlement to service connection for skin problems, other than basal cell cancer of the nose is denied.


REMAND

While further delay is regrettable, additional development is warranted before the Veteran's claims may be decided.

On November 4, 2011 the Veteran received a VA examination related to his right ankle disability. The evidence supports complaints of right ankle during service. For example, an STR from October 1985 indicates the Veteran sought treatment for an injury to his right ankle. The November 2011 examiner found evidence of a current disability for the right ankle, however, the examiner did not provide a nexus opinion. Accordingly, an addendum opinion is required to establish whether the Veteran's current diagnoses are related to service.

In another statement, the Veteran identified records from the Belmont CBOC, Pittsburg VAMC, and Clarksburg VAMC that are relevant to his claim. VA must obtain these records in connection with the Veteran's claim.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should undertake appropriate development to obtain any outstanding VA treatment records, including those from the Belmont CBOC, Pittsburg VAMC, and Clarksburg VAMC after April 15, 2016. If no additional records are available, include a note to that effect in the file.

2. Thereafter, return the record to the VA examiner who performed the November 2011 examination, and obtain a VA addendum opinion to ascertain the likely etiology for the Veteran's right ankle disability. The claims folder and a copy of this Remand are to be furnished to the examiner for review. If the November 2011 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for additional examination of the Veteran is left to the discretion of the examiner selected to write the addendum opinion.

The examiner is requested to opine whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's current right ankle disability was caused by or is related to the Veteran's active duty service, which periods are from August 1985 to January 1986, from January 2005 to January 2006, and from March 2009 to March 2010.

3. After completing the above development, and any additional development as may become indicated, including obtaining any clarifying medical opinion, readjudicate the claim. If the benefits sought on appeal are not granted in full, issue a Supplemental Statement of the Case and provide the Veteran an opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter 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 (2012).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs