Citation Nr: 1804231 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-20 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for migraines. 5. Entitlement to service connection for bilateral peripheral neuropathy of the upper extremities. 6. Entitlement to service connection for a skin disability of both ankles, claimed as rash. 7. Entitlement to service connection for a gastrointestinal (GI) or esophageal disability. 8. Entitlement to increases in the (20 percent prior to February 15, 2010 and 10 percent from that date) staged ratings for a lumbar spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1952 to October 1954. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). An October 2008 rating decision denied service connection for a GI disability and a bilateral ankle rash. A June 2010 rating decision granted service connection for a lumbar spine disability, rated 10 percent, effective April 2008. An October 2012 rating decision denied service connection for bilateral hearing loss, tinnitus, a psychiatric disability, migraines and a bilateral upper extremity disability. A May 2013 rating decision assigned a 20 percent rating for the Veteran's service-connected lumbar spine disability, effective from April 2008, and resumed a 10 percent rating effective February 15, 2010. These matters were previously before the Board in May 2016 and were remanded for additional development and to ensure due process. In October 2017, the Veteran stated that he would not be able to attend a videoconference hearing scheduled at his request in November 2017, and indicated that VA should proceed with the adjudication of his claim. Accordingly, his hearing request is deemed withdrawn. [The Board's May 2016 decision denied service connection for a bilateral eye disability, resolving that matter.] The issues of service connection for bilateral hearing loss, tinnitus, a psychiatric disability to include PTSD, migraines and a disability of the upper extremities, and seeking an increased rating for the Veteran's low back disability are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. 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) (2012). FINDINGS OF FACT 1. The Veteran is not shown to have a skin disability of the ankles; and there is no probative evidence that suggests any such disability may be related to his service. 2 The Veteran's stomach complaints in service were acute, and resolved without residual pathology; a chronic GI/esophageal disability was first manifested many years following the Veteran's service; and such disability is not shown to be etiologically related to his service. CONCLUSIONS OF LAW 1. Service connection for a skin disability of both ankles is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. Service connection for a GI/esophageal disability is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a May 2008 letter. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's service treatment records (STRs), and postservice VA and private medical records have been secured. He was afforded a VA examination to establish the presence and ascertain the etiology a GI disability. He was not afforded a VA examination to confirm the existence and ascertain the etiology of an ankle rash. As such disability is not shown by competent evidence to be present, and there is no evidence that such disability may be etiologically related to the Veteran's service, even the low threshold standard for determining when an examination to secure a medical opinion is necessary is not met (see McLendon v. Nicholson, 20 Vet. App. 79 (2006)), and an examination is not necessary. VA's duty to assist is met. The Board also finds that there has been substantial compliance with the May 2016 Board remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Factual Background, Legal criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's STRs show that he was seen for pains under his heart in March 1954, and was treated with a GI cocktail. In April 1954, he was seen three times for stomach trouble. Medication was prescribed. On the last visit, it was noted that he had experienced one diarrheal movement, but there was no pain or vomiting. Examination found the abdomen to be soft and non-tender. On September 1954 service separation examination, the abdomen and viscera and skin were normal. Private medical records show that in January 2003, the Veteran was seen for unrelated complaints and a past medical history of peptic ulcer disease was noted. Examination of the abdomen showed no tenderness, organomegaly or guarding. In May 2005, he stated that he began having sharp abdominal pains when in Mexico in January of that year. He also had left upper quadrant pain, diarrhea and rectal bleeding. The assessments were abdominal pain, diarrhea, rectal bleeding, probably from irritable bowel disease, and reflux esophagitis. In April 2007, he complained of difficulty swallowing. The assessments were irritable bowel disease and dysphagia that might be from an esophageal stricture. On April 2012 VA skin examination, it was noted that the Veteran did not have a visible skin condition. In June 2012, the Veteran's spouse stated that she and the Veteran were married shortly after his discharge from service and that he complained of itching of both ankles. He told her that he was treated for jungle rot in service. She also said that he went to several doctors after service and was given a cream that would relieve his condition for a period of time. On January 2013 VA stomach examination, it was noted that the Veteran was seen for stomach complaints on several occasions during service. The examiner noted that no abdominal problems were noted on service separation examination. He also noted that the Veteran stated that he had gastroesophageal reflux disease (GERD) diagnosed around 2005, and that an endoscopy showed erosive duodenopathy, gastropathy, esophageal stricture and ischemic bowel disease. The diagnosis was GERD, with stricture, erosive duodenopathy and gastropathy. The examiner opined that it was less likely than not that the Veteran's GI condition was related to his complaints of stomach and chest pain in service. He noted that the symptoms in service resolved in a limited period of time with no subsequent recurrence in service and no problems at separation. He also noted that there were no further problems until around 2005. On October 2015 VA skin examination, it was noted that the Veteran had no skin lesions on the lower leg that were not due to tinea cruris (which is already service-connected). Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. §§ 101(24), 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Skin disability of the ankles The Veteran's STRs are silent for complaints or findings pertaining to a skin disability of the ankles. No skin abnormalities were found on the September 1954 service separation examination. His wife reported that he told her shortly after service that he was told that he had jungle rot in service, and that he also sought treatment for skin problems after service. The Veteran is competent to state he received treatment for skin problems. Notably, the record is devoid of medical evidence showing that the Veteran has, at any time during the pendency of this claim, been found to have a skin condition of the ankles. He has not submitted any medical evidence demonstrating that he has a skin disability of the ankles. Service connection is limited to those cases where disease or injury in service has resulted in a current (shown during the pendency of the claim; see McClain v. Nicholson; 21 Vet. App. 319 (2007 chronic disability). In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). As this threshold requirement is not met, the preponderance of the evidence is against the claim seeking service connection for a skin disability of the ankles, and the appeal in the matter must be denied. GI/esophageal condition The Veteran's STRs confirm that on several occasions he was seen for stomach problems. On service separation examination no GI abnormalities were noted. In 2003, he was noted to have a past history of peptic ulcer disease. In 2005 he reported that he began to have abdominal pain earlier that year. He has not claimed that his abdominal symptoms have been present since service. Whether or not under any current GI/esophageal condition may be related to service is a medical question that is beyond the scope of lay observation or common knowledge and requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no medical evidence in the record indicating that a current GII or esophageal disability is, or may be, related to the Veteran's service. He is a layperson, and has not presented any medical opinion or treatise evidence supporting his claim that he his GI condition is related to service. His opinion in the matter has no probative value. The only medical opinion in this matter was offered on the January 2013 VA examination and is against the Veteran's claim. The examiner reviewed the record and opined that it is less likely than not that the Veteran's GI condition is related to service. The examiner acknowledged that the Veteran had stomach complaints in service, but also noted that no such abnormality was found at separation or for many years after his discharge from service. He noted that the Veteran's symptoms in service resolved. The opinion reflects familiarity with the record and the Veteran's medical history, and includes rationale that cites to supporting factual data. It is probative evidence in this matter, and, in the absence of competent evidence to the contrary, persuasive. Therefore, the preponderance of the evidence is against the claim of service connection for a GI/esophageal disability. Accordingly, the appeal in this matter must be denied. ORDER Service connection for a skin disability of the ankles is denied. Service connection for a GI/esophageal disability is denied. REMAND The Board's May 2016 remand directed additional development regarding the Veteran's claims of service connection for bilateral hearing loss, tinnitus, a psychiatric disability, to include PTSD, migraines and a disability of the upper extremities. It appears, however, that except for obtaining additional service personnel records, the AOJ failed to undertake the requested actions, and simply returned the records to the Board. Regarding the low back, the Veteran asserts that it has increased in severity. The most recent VA examination to assess the severity of his back disorder was more than five years ago. In light the length of the intervening period since he was last examined and the allegation of worsening, a contemporaneous examination to assess the low back is necessary. As there has not been compliance with the Board's remand instructions, corrective action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following: (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. The AOJ should ask the Veteran to identify the providers of all evaluations and treatment he has received for hearing loss, tinnitus, a psychiatric disability, migraines and a bilateral upper extremity disability since his discharge from service, and for the low back since 2012, and to provide authorizations for VA to secure records of any such private evaluations or treatment. The AOJ should secure for the record all outstanding records of the evaluations and treatment from the providers identified. 2. The AOJ should arrange for exhaustive development to verify the Veteran's accounts of alleged stressor events in service, including that while stationed near the DMZ in Korea, he saw soldiers being killed, that a good friend did not return from combat, and that he feared injury from land mines. If the information of record, to include that obtained pursuant to the development ordered herein, is insufficient to corroborate the stressors, the Veteran should be notified of the specific information that is need to allow for verification and afforded an opportunity to respond. Thereafter, the AOJ should make a finding for the record regarding each of the Veteran's alleged stressor events, indicating regarding each whether or not it is corroborated by credible supporting evidence. If development in this matter cannot be completed, there must be an explanation for the record why that is so; the scope of the development for corroboration must be described. 3. After the development sought above is completed, the AOJ should arrange for a VA psychiatric examination of the veteran to ascertain the nature and etiology of any psychiatric disability he may have. The Veteran's record must be reviewed by the examiner in conjunction with the examination. The AOJ should advise the examiner of what stressor events (if any) are corroborated by credible supporting evidence, and whether the Veteran served in circumstances consistent with a fear or hostile military action/terrorist activity. Upon review of the record and examination of the Veteran, the examiner should respond to the following: (a) Please identify by diagnosis each psychiatric disability found, specifically indicating whether or not the Veteran has a diagnosis of PTSD based on a stressor event found by the AOJ to be corroborated, or on a fear of hostile military or terrorist activity (if the AOJ finds the Veteran served in circumstances consistent with such fear). If PTSD is not diagnosed, the examiner should indicate what symptoms needed for such a diagnosis are lacking. (b) Please identify the likely etiology for each diagnosed acquired psychiatric disability other than PTSD (to include the diagnoses of anxiety disorder and memory loss noted in VA treatment records). The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that any such diagnosis is related to the Veteran's service (or was caused or aggravated by a service-connected disability). All opinions must include rationale with citation to factual data/medical literature, as deemed appropriate. 4. The AOJ should also arrange for a VA audiological evaluation of the Veteran to confirm the existence and ascertain the etiology of any current bilateral hearing loss and tinnitus. The Veteran's records must be reviewed by the examiner in conjunction with the examination. The audiologist should state whether the Veteran has tinnitus or a hearing loss disability (as defined in 38 C.F.R. § 3.385) in either (or both) ear(s), and opine whether it is at least as likely as not (a 50 percent or higher probability) that any such disability is related to the Veteran's service, to include as due to acoustic trauma therein. All opinions must include rationale with citation to factual data/medical literature, as deemed appropriate. 5. The AOJ should arrange for a neurological examination of the Veteran to determine the nature and likely etiology of any headache disability, to include migraines, and any upper extremity disability, claimed as peripheral neuropathy. The Veteran's record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his record, the examiner should respond to the following: (a) Please identify by diagnosis any headache disability found, and the likely etiology for each such disability. (b) The examiner should also indicate whether there is clear and unmistakable (obvious, manifest and undebatable) evidence that a currently diagnosed headache disability preexisted the Veteran's service (and if so, whether there is clear and unmistakable evidence that the preexisting headache disability was not aggravated (i.e., permanently worsened) during service (or, it is clear and unmistakable (obvious, manifest and undebatable) that any increase was due to the natural progress? (c) If there is no clear and unmistakable evidence that a currently diagnosed headache disability preexisted service, is it at least as likely as not (a 50 percent or greater probability) that such disability was incurred in service. (d) Please identify each upper extremity neurological disability found (by diagnosis), and regarding each such disability opine whether it is at least as likely as not (a 50 percent or higher probability) that the disability was incurred in service or was caused or aggravated by the Veteran's service-connected lumbar spine disability. All opinions must include rationale . 6. The AOJ should then review the record and readjudicate the remaining claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs