Citation Nr: 18140282 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-10 504 DATE: October 2, 2018 ORDER Entitlement to service connection for a left ankle disorder is denied. Entitlement to service connection for a cardiac disorder is denied. Entitlement to service connection for a left arm disorder is denied. Entitlement to service connection for a right arm disorder is denied. Entitlement to service connection for bilateral carpal tunnel syndrome is denied. Entitlement to a total disability based upon individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. The Veteran's left ankle disorder was not noted at service entry. 2. The Veteran's left ankle disorder did not clearly and unmistakably exist prior to service. 3. Service did not cause the Veteran's left ankle disorder. 4. The Veteran does not have, nor has he ever had, a cardiac disorder. 5. The Veteran did not have a bilateral arm incident or injury in service, nor did he have carpal tunnel syndrome in service. 6. The issue of entitlement to a TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for service aggravation for a left ankle disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for service connection for a cardiac disorder, claimed as multiple heart attacks, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102. 3. The criteria for service connection for a left arm disorder, right arm disorder, and carpal tunnel syndrome, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102. 4. Entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service Aggravation A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b) (2016). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. Id. Issue 1: Entitlement to service aggravation for a left ankle disorder. The Veteran, in a Report of Medical History dated August 9, 1967, stated that he was involved in an automobile accident prior to enlisting. He described his left leg as "crushed" with a "fractured ankle." Notwithstanding this, in a Report of Medical Examination of the same date, the Veteran's left ankle was not listed in Section 74 of the Report, "Summary of Defects and Diagnoses." Therefore, any ankle disorder the Veteran had was not "noted" at entrance into service, and the presumption of soundness at entry into service attaches. 38 U.S.C. § 1111. As the Veteran’s current left ankle disorder was not noted at the time of entry into service, VA has the burden, by clear and unmistakable evidence, to show both a) the disorder preexisted service, and b) the preexisting disorder was NOT aggravated in/during service. The undersigned finds VA failed the first prong of this test because it did not show the relationship between the Veteran's pre-service automobile accident and post-service automobile accident, both of which impacted his left ankle. Accordingly, pursuant to Wagner, 370 F.3d 1096, the case converts back to one of direct service incurrence. Analyzing the claim under the service connection framework above, the claim fails on the second prong – in-service incident. Neither the Veteran nor his prior representative articulated any incident involving his ankle nor do the service treatment records reveal any treatment. Moreover, in a Report of Medical Examination dated February 13, 1970, no left ankle disorder was noted upon separation. Because the Veteran has failed to meet the second prong a service connection claim, the Board must deny the appeal. Issue 2: Entitlement to service connection for a cardiac disorder. The Veteran's appeal fails because he does not meet the first prong of a service connection claim – current disability. Although the Veteran claimed service connection for "multiple heart attacks," the VA nurse practitioner who examined the Veteran for compensation purposes in June 2015 contravened this assertion. First, the examiner said the Veteran did not have, nor had he ever had, a cardiac disorder. Second, the examiner noted that the Veteran's treatment records from the Wayne County medical center from February 2006 "reveals that [the] veteran was evaluated for CP [chest pains] but EKG and labwork were negative for MI [myocardial infarction]. No objective evidence of CAD [coronary artery disease] or MI diagnosis." Issue 3: Entitlement to service connection for a left arm disorder. Issue 4: Entitlement to service connection for a right arm disorder. Issue 5: Entitlement to service connection for bilateral carpal tunnel syndrome. The three claimed conditions are grouped because it is unclear precisely what the Veteran has claimed. His VA treatment records show he reported "numbness" in his hands and feet, but there is no formal diagnosis. VA has not examined the Veteran for these issues. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i). Here, the undersigned finds examination is not necessary because the Veteran has failed the second prong of McClendon because neither the Veteran nor his prior representative articulated any in-service incident involving his arms, numbness, or carpal tunnel syndrome. By extension, the undersigned finds the Veteran fails the second prong of a service connection claim – in-service incident. The Board therefore denies the appeals. Issue 6: Entitlement to a TDIU. VA service connected the Veteran's posttraumatic stress disorder (PTSD) at 100 percent disabling effective April 27, 2012. The United States Court of Appeals for Veterans Claims has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). Therefore, the Veteran's claim for a TDIU is moot as he has been awarded a 100 percent schedular rating for the entirety of the period where TDIU was under appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel