Citation Nr: 18143698 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-42 799A DATE: October 23, 2018 ORDER Entitlement to service connection for a bilateral arm disorder is denied. Entitlement to service connection for a neck disorder is denied. Entitlement for service connection for osteoarthritis of the right knee is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for headaches, including exposure to water contamination at Camp Lejeune, is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for osteoarthritis of the left knee, to include hyperostosis of the left tibia, is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right ankle, including joint instability, is remanded. Entitlement to service connection for diabetes mellitus, type II, including exposure to water contamination at Camp Lejeune, is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a vision disorder, including diabetic retinopathy and cataracts, including exposure to water contamination at Camp Lejeune, is remanded. Entitlement to service connection for a heart condition, including exposure to water contamination at Camp Lejeune, is remanded. Entitlement to service connection for a stomach condition, to include abdominal pain, including exposure to water contamination at Camp Lejeune, is remanded. FINDINGS OF FACT 1. The probative evidence of record fails to establish that the Veteran’s bilateral arm, neck, right knee or headache disabilities are etiologically related to his active duty. 2. The Veteran does not have a bilateral hearing loss disability for VA purposes. 3. The Veteran has been assigned the maximum schedular rating for tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral arm disorder, neck disorder, osteoarthritis of the right knee, bilateral hearing loss and headaches and have not been met. 38 U.S.C. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for entitlement to an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.87 Diagnostic Code (DC) 6260 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from February 1976 to February 1979. Service Connection Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.30(a) (2017); Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2012); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or is legitimately questionable. 38 C.F.R. § 3.303(b) (2018). This alternative means of linking the currently-claimed condition to service is only available if the condition being claimed is one of those specifically identified in 38 C.F.R. § 3.309(a) as chronic, per se. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a bilateral arm disorder. 2. Entitlement to service connection for a neck disorder. 3. Entitlement for service connection for osteoarthritis of the right knee. The Veteran believes that his bilateral arm, neck and right knee disorders are related to his active duty. The probative medical evidence of record, however, precludes granting service connection for these claims. At the outset, the Board observes that the Veteran’s service treatment records (STRs) are unremarkable for a complaints, treatments, symptoms or diagnosis of bilateral arm, neck or right knee disorders. The only exception is that the Veteran was treated once in service for an abrasion on the right knee. Post service, the medical treatment records show treatment for these conditions after the Veteran sustained a fall from 20 feet of a ladder while cutting limbs for his neighbor. See VA medical treatment records dated October 2011, December 2012 and April 2012. Additionally, at a November 2012 VA examination regarding the Veteran’s right knee disorder, the examiner noted that the Veteran’s October 2011 fall resulted in the right knee disorder. The examiner, therefore, opined that the right knee disorder did not have its onset in service, including the abrasion noted in the STRs to the right knee; instead, it was more likely than not related to the October 2011 fall. Accordingly, the probative evidence fails to establish the necessary nexus linking the Veteran’s neck, bilateral arm and right knee disorders to his active duty. While the Veteran sincerely believes that these disabilities were related to his active duty, any opinion regarding the etiology of these disabilities requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d. 1372, 1376 (2007). Here, the Veteran’s medical treatment records reflect that these disabilities had their onset in October 2011 after he fell off the ladder. Further, the expert opinion obtained fails to establish the required relationship between the Veteran’s right knee disorder and his service. Thus, the evidence of record is insufficient to substantiate the claims for service connection for a bilateral arm, neck and right knee disorders. The Board is grateful to the Veteran for his honorable service, and regrets that it cannot render a favorable decision in this matter. The preponderance of the evidence is against the Veteran’s claims. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a bilateral arm, neck and right knee disorders is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for headaches. The Veteran believes that he has headaches that are related to his active duty, including as due to exposure to contaminants in the water supply at Camp Lejeune. Unfortunately, the Board finds that service connection for headaches is not warranted. In reaching this decision, the Board is cognizant of 38 C.F.R. § 3.307 and 3.309, which have recently been amended to include eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. The list includes: adult Leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease. See 82 Fed. Reg. 4173, 4179 (January 13, 2017). Headaches are not included as a disease associated with the contaminated water supply. While the Veteran is not entitled to presumptive service connection, the claims must still be considered for direct service connection. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). In this regard, the Veteran’s STRs are silent for any treatment, symptoms, complaints or diagnosis of headaches. Post-service medical treatment records also fail to establish that he has been diagnosed with headaches. Instead, they reflect that his complaint of headaches was due to a sinus infection. See private medical treatment records from Southeast Alabama Rural Health Associates (SARHA) dated February 2015. Additionally, the record includes a June 2013 VA examination, which shows that the Veteran did not have a headache disability. Therefore, the examiner opined that the Veteran’s claimed condition was not related to his service, including the contaminated water supply at Camp Lejeune. In the absence of a disability, compensation may not be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the claim for headaches must be denied on both a presumptive and direct basis. 5. Entitlement to service connection for bilateral hearing loss. The Veteran contends he has a hearing loss disability related to his active duty. The probative evidence of record, however, precludes granting this claim. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But before service connection may be granted for hearing loss, it must be of a particular level of severity to be considered an actual ratable disability. Specifically, for purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2018). At the October 2012 VA examination, reported puretone thresholds, in the relevant frequencies, were 15, 15, 20 and 30 decibels in the left ear with an average of 20 decibels, and 15, 10, 15 and 35 decibels in the right ear with an average of 19 decibels. Speech recognition scores using the Maryland CNC Test were 96 percent in both ears. Based on the October 2012 VA examination, service connection for bilateral hearing loss cannot be granted at this time because the hearing loss in either the left or the right ear does not meet the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual ratable disability. See Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000) (generally observing that, in the absence of proof of a current disability, there can be no valid claim because there is no present-day disability to relate or attribute to service). Indeed, this is true even considering the evidence in the file immediately preceding the date of receipt of this claim. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Therefore, service connection for bilateral hearing loss is denied. 6. Entitlement to an initial rating in excess of 10 percent for tinnitus The Veteran’s tinnitus is rated at 10 percent under Diagnostic Code 6260. The version of Diagnostic Code 6260 in effect since June 13, 2003 provides that only a 10 percent evaluation can be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note (2) (2018). Therefore, no more than a single 10 percent rating is permissible for the Veteran’s tinnitus, and his claim is therefore denied. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming the VA’s long-standing interpretation of pre-June 13, 2003 DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for osteoarthritis, left knee to include hyperostosis left tibia is remanded. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right ankle including joint instability is remanded. The Board observes that the Veteran last had a VA examination in November 2012 regarding his left knee and right ankle disabilities. In Correia v. McDonald, 28 Vet. App. 158 (2016) promulgated since, the United States Court of Appeals for Veterans Claims (CAVC) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia established additional requirements that must be met prior to a finding that a VA examination is adequate. On the VA examinations in the record the additional testing required under Correia was not completed (and is not shown to be unnecessary or not possible). Moreover, VA treatment records indicate that these disabilities have increased in severity. See VA medical treatment records dated June 2017. Accordingly, new VA examinations are in order. 3. Entitlement to service connection for diabetes mellitus, type II. In an August 2011 VA medical treatment record, the Veteran reported that his diabetes mellitus started during service and was treated in the 1980s for it; specifically referring to a Dr. Golden in Brundidge, Alabama in 1982. These records have not been obtained and might shed more light on the Veteran’s claim for diabetes mellitus. Therefore, this claim is being remanded to make attempts to obtain these private treatment records. 4. Entitlement to service connection for a back disorder. 5. Entitlement to service connection for a vision disorder, including diabetic retinopathy and cataracts. 6. Entitlement to service connection for a heart condition, including exposure to water contamination at Camp Lejeune. 7. Entitlement to service connection for a stomach condition, to include abdominal pain, including exposure to water contamination at Camp Lejeune. Private medical treatment records from Troy Medical Center dated May 2014, reflect that the Veteran’s left leg below the knee was amputated due to gangrene complicated by his diabetes mellitus. VA medical treatment records dated June 2017, indicate that the Veteran’s complaints of back pain are aggravated by the left leg amputation. Likewise, the Veteran’s claim for a vision disorder, which included diagnoses of diabetic retinopathy and cataracts have been associated with the Veteran’s diabetes mellitus. See VA examination dated February 2013. Additionally, the claims for a stomach condition (GERD) and a heart condition have been tangentially linked to the Veteran’s nutrition and diet regarding his diabetes mellitus. See VA medical treatment records dated April 2012, May 2012 and June 2017; see private medical treatments from Troy Medical Center dated May 2014. Accordingly, these claims must also be remanded as intertwined with the Veteran’s claim for diabetes mellitus. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA medical treatments dated since June 2017. 2. Make arrangements to obtain the Veteran’s private medical treatment records from Dr. Golden from Brundidge, Alabama, dated from 1982, or any other dates the Veteran may indicate that he received treatment for diabetes mellitus. 3. Make arrangements to obtain the Veteran’s private medical treatment records, including from the Troy Medical Center dated since May 2014 and SAHRA dated since September 2015. 4. Thereafter, schedule the appropriate VA examination(s) to assess the current level of severity of his service-connected left knee and right ankle disabilities. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner(s) in conjunction with the examination(s). The examiner(s) must note in the examination report(s) that the evidence in the claims file has been reviewed. All indicated tests should be completed and all relevant clinical findings reported. The appropriate Disability Benefits Questionnaire(s) (DBQs) should be filled out. In the examination report(s), the examiner must include all of the following for left knee and right ankle disabilities: A. Active range of motion testing results. B. Passive range of motion testing results. C. Weightbearing range of motion testing results. D. Non-weightbearing range of motion testing results. If the examiner(s) is/are unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner(s) must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. The examiner(s) must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. The examiner(s) must also elicit a full history from the Veteran regarding the service-connected disabilities and provide comment as to whether it is at least as likely (50 percent probability) they impact the Veteran’s ability to secure or maintain substantial gainful employment. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Sangster, Counsel