Citation Nr: 18145490 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-14 617 DATE: October 29, 2018 ORDER Service connection for a back condition is denied. Service connection for residuals of a left foot gunshot wound is denied. Service connection for an unspecified right foot condition is denied. Service connection for an unspecified left foot condition is denied. Service connection for hypertension is denied. Service connection for cerebrovascular accident (CVA) is denied. Service connection for major depressive disorder (MDD) is denied. A rating higher than 10 percent for tinnitus is denied. A rating higher than 10 percent for eczema is denied. Special monthly compensation (SMC) based on the need for aid and attendance (A&A) of another person or housebound status is denied. REMANDED Entitlement to a rating higher than 10 percent for bilateral hearing loss is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s back condition, unspecified bilateral foot conditions, hypertension, CVA and MDD are not shown to have been present in service, or for many years thereafter, nor are these conditions the result of any incident or incidents of the Veteran’s period of active military service. 2. The Veteran has no residual symptoms of a left foot gunshot wound. 3. Throughout the appeal period, the Veteran’s bilateral tinnitus has been assigned a 10 percent rating, the maximum schedular rating authorized under Diagnostic Code 6260; an unusual or exceptional disability picture is not presented by this disability. 4. The Veteran’s eczema covered less than 20 percent of his entire or exposed body area and required no intermittent systemic therapy for the period on appeal. 5. Service-connected disabilities did not render the Veteran so nearly helpless as to require the regular aid and attendance of another person, nor did they cause him to be housebound. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for residuals of a left foot gunshot wound are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for an unspecified right foot condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for service connection for an unspecified left foot condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 6. The criteria for service connection for a CVA are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 7. The criteria for service connection for MDD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 8. The criteria for a rating higher than 10 percent for eczema are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.118, Diagnostic Code (DC) 7806. 9. The criteria for an initial rating higher than 10 percent for tinnitus, including on an extraschedular basis pursuant to 38 C.F.R. § 3.321 are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.87, DC 6260. 10. The criteria for SMC based on the need for aid and attendance or at the housebound rate are not met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1975 to May 1978 and from September 1978 to May 1983. This matter comes before the Board of Veterans Appeals (Board) on appeal from August 2010, December 2010, May 2011, and April 2013 rating decisions of a Department of Veterans’ Affairs (VA) Regional Office. In March 25, 2015 Substantive Appeals (VA Form 9s), the Veteran requested a hearing before a Member of the Board relating to his claim. In July 2016, the Veteran submitted a statement withdrawing his hearing request. There are no other hearing requests of record. Accordingly, the Veteran’s hearing request is deemed withdrawn. See 38 C F R § 20.704(e). Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, malignant tumors, heart disease, and bilateral hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a back condition. 3. Entitlement to service connection for CVA. 4. Entitlement to service connection for MDD. Issues 1-4. The Veteran contends that he has a back condition, hypertension, CVA and MDD as a result of his military service. After review of all the lay and medical evidence of record, the Board finds that the Veteran’s current back arthritis, hypertension, CVA and MDD are not due to an incident or disease during service; there are no symptoms of arthritis, hypertension stroke or depression during active service, or continuous chronic symptoms since service, including to a compensable degree within the first post-service year. Service treatment records do not reveal any complaint of, diagnosis of, or treatment for these issues. The Veteran has not alleged a continuity of symptomatology for hypertension or his back, and the clinical evidence does not suggest continuous symptoms for any of these conditions. The earliest post-service evidence of back complaints and diagnosis is dated in 2013; for hypertension, 2008; for CVA, 2008; and for depression, 2009; more than 20 years after service separation. The more than 20-year gap between service and post-service complaints relevant to the Veteran’s back, hypertension, CVA and MDD is a factor that weighs against service incurrence. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), 230 F.3d at 1333. The evidence shows that the current back, hypertension, and MDD are not otherwise causally or etiologically related to service. Competent and credible linking the disabilities to service has not been submitted. The Veteran, as a lay person, is competent to report past and symptoms; however, he is not competent to render a competent medical opinion regarding etiology under the specific facts of this case, which include absence of back, hypertension, and depression symptoms until many years after service. Back arthritis, hypertension, CVA and MDD are complex diseases that involve unseen system processes that are not observable by the five senses of a lay person. For example, x-ray and other medical testing are needed to arrive at these medical diagnoses. For these reasons, the Veteran is not competent to diagnose arthritis, hypertension, or depression; or to opine as to the etiology of these diseases, where there is an absence of in-service injury, disease, or symptoms, and the credible reports of symptoms begin many years after service. As noted, opinions as to diagnosis and causation involve making findings based on history, complaints and symptoms, signs, medical knowledge, and clinical testing results; therefore, the Board finds that the Veteran’s lay statements have no probative value. On balance, considering the foregoing, the Board finds that the evidence weighs against finding that a back condition, hypertension, CVA and MDD were incurred in service or are otherwise etiologically related to service. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to service connection for residuals of a left foot gunshot wound and a right and left foot condition The Veteran contends that he is entitled to service connection for unspecified bilateral foot conditions and residuals of a gunshot wound in the left foot. The Board concludes that the preponderance of the evidence is against service connection for residuals of a left foot gunshot wound, an unspecified right foot condition, and an unspecified left foot condition. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. Service treatment records (STRs) are silent for complaints, treatments, or findings for abnormal pathology of the right foot while in service. STRs document a gunshot wound to the left third toe, with subsequent treatment and no further left foot incidence. Service separation reflects normal clinical evaluation of the feet. Further, July 1985 examination of the feet was normal on National Guard entry. The Veteran’s post-service treatment records are also silent for any complaints, treatments, or manifestations of any of these disabilities. A 2010 VA examination reflects complaints of pain in his feet as crushing, burning, aching and cramping that is relieved by cream. The Veteran reported no infection of the bone but described occasional left foot pain. The examiner noted that the wound was through and through, involved hospitalization, but did not involve blood vessels, bone, fascia or nerves. The Veteran reported walking with a limp, being unable to tolerate prolonged walking or standing, and having to use a walker or a cane. However, objectively, physical examination revealed no nerve damage, abnormal gait, muscle impairment, or scars. The Veteran did not require any assistive devices for ambulation, and there were no signs of lowered endurance or impaired coordination. The examiner found no pathology to render a diagnosis. As noted above, the first requirement for service connection is a diagnosis of the condition. The above cited evidence reflects that the Veteran did not have current chronic disabilities pertaining to the feet at any time during the appeal period. The Board has also considered the lay statements of record. To the extent he claims he has chronic disabilities pertaining to bilateral feet and residuals of a gunshot wound to the left foot to service, the Board finds that, as a lay witness, he is not competent to provide any of the diagnoses. See Jandreau, 492 F.3d at 1377. He is competent to report recurring aches and pain; however, the record does not reflect clinical/laboratory testing supporting any diagnoses pertaining to the feet, and the Veteran does not assert specific symptoms. Thus, on the facts of this case, his report of current disabilities is not deemed competent evidence supportive of actual diagnoses. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under 38 U.S.C. § 1110 because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018); see also Dorland’s Illustrated Medical Dictionary at 526 (32nd ed. 2012) (defining disability as “an incapacity or lack of the ability to functional normally; it may be either physical or mental or both”). However, even considering Saunders, the Board concludes that the Veteran does not have a present disability of either foot as he has not presented evidence of any functional loss or functional impairment due pain. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 6. Entitlement to a rating higher than 10 percent for eczema The Veteran contends that his skin disability warrants a rating in excess of 10 percent. The Board concludes that the preponderance of the evidence is against a rating higher than 10 percent for eczema. 38 C.F.R. § 4.118, DC 7806. Neither the lay nor the medical findings more nearly reflect the criteria for a higher rating. 38 C.F.R. § 4.7. VA assigns a percentage rating for a disability by comparing a veteran’s disability against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1. The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. If a veteran’s symptoms implicate two different ratings under a single Diagnostic Code (DC) in the Schedule, then VA will assign the higher rating provided that the symptoms more closely align with the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Reasonable doubt as to the degree of a veteran’s disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Staged ratings, or separate ratings based on evidence showing that a veteran’s disability was different at distinct times, will also be considered. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the Veteran’s condition, the law, and medical knowledge. 38 C.F.R. § 4.1. The Veteran’s skin disorder is rated under 38 C.F.R. § 4.118, DC 7806 (dermatitis or eczema). Under the provisions of this DC, a 0 percent rating is warranted if less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted if at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. A May 2009 VA examiner found that the skin disability covered less than 5 percent of the Veteran’s entire body was affected and no more than topical medication was required during the past 12-month period. See VA Examination, dated May 13, 2009. A November 2010 VA examination, completed while the Veteran’s condition was active, documented eczema that covered 2 percent of the exposed area, 6 percent of the Veteran’s entire body, and required immunosuppressive medication during the previous 12-month period. See C&P Exam, dated December 1, 2010. The Veteran’s clinical records lack evidence of immunosuppressive therapy. The Veteran was asymptomatic on examination in May 2015; he had no scarring and used a topical steroid as needed for inflammatory rash. See C&P Exam, dated May 22, 2015. Private and VA treatment records document occasional outbreaks which require the use of topical medications. These results are consistent with a 10 percent rating. The Board finds that the competent medical evidence of record does not support an increased rating of 30 percent because eczema has not affected 20 to 40 percent of the Veteran’s entire body or 20 to 40 percent of exposed areas at any time; and though the December 2010 VA examiner reports the use of immunosuppressive medications, systemic therapy such as corticosteroids or other immunosuppressive drugs is not documented in the clinical record. The Board acknowledges that the Veteran’s condition worsened between 2009 and 2010, from symptoms associated with a noncompensable rating to symptoms associated with a 10 percent rating; but as he already had a 10 percent rating effective December 16, 2008, no increase can occur. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements regarding the severity of his service connected disability and that a higher rating is warranted. To the extent that he is arguing that his ratings should be even higher, the Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing symptoms. Although the Board may consider the Veteran’s subjective statements regarding the severity of his disabilities, and has in this case, the Board notes that with respect to the Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have, that these types of findings are not readily observable by a layperson, and that objective medical findings and opinions provided by VA examiners are afforded the greater probative weight. The probative value of medical evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Here, the Board has determined that the findings and opinions provided by the VA examiner of record should be afforded the greater probative weight. The Board accepts that the Veteran is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. Accordingly, the claim is denied. The Board finds that there is no basis to “stage” the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 7. Entitlement to a rating higher than 10 percent for tinnitus on an extraschedular basis The Veteran is seeking an increased rating for bilateral tinnitus, which is currently rated at the maximum schedular allowance under Diagnostic Code 6260. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit found that 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Diagnostic Code 6260, limit a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Board has considered whether the Veteran’s disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant’s disability. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the Veteran’s bilateral tinnitus is manifested by ringing in his ears. The Veteran reports his tinnitus is so severe as to prevent him from being able to hold a conversation unless looking directly at the person and reading their lips. See Third Party Correspondence, dated June 26, 2014. The Veteran’s tinnitus is contemplated by the rating criteria under Diagnostic Code 6260. To the extent that it is asserted that the tinnitus interferes with the Veteran’s daily activities, the functional effects of his tinnitus are how the disability impacts him in his ordinary activities, including the effect on his activities including sleep and communication. Even though these effects may not be explicitly written in the diagnostic code, the rating schedule for tinnitus is written so broadly and inclusively as to compensate for all associated symptoms and functional effects. See 38 C.F.R. § 4.87; 68 Fed. Reg. 25822 (May 14, 2003). In Doucette v. Shulkin, the United States Court of Appeals for Veterans Claims has made clear that a diagnostic code need not list every word or type of symptom to contemplate a type of functional effect. For instance, problems with hearing sounds in crowds, televisions or telephones are not listed in the diagnostic code for hearing loss but are nonetheless contemplated because they are the actual effects of the hearing loss in daily life. See 28 Vet. App. 366 (2017). Here, although in the context of a tinnitus extraschedular rating claim, the Doucette decision by extension shows that the symptoms of the Veteran’s tinnitus, and their functional effects, are contemplated by the rating schedule for evaluating the disability. Additionally, the record on appeal establishes that the Veteran regularly seeks medical assistance by telephone and participates in conferences with VA social workers in the same manner showing that face-to-face communication is not necessitated by his tinnitus. The Board finds that the rating criteria adequately describe the Veteran’s disability level and symptomatology. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. Consequently, referral for extraschedular consideration is not warranted. The Veteran’s service-connected tinnitus has been assigned the maximum 10 percent schedular rating available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear or a higher evaluation overall, the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). 8. Entitlement to SMC A&A or housebound The Veteran contends that his disabilities warrant an award of SMC based on the need for regular aid and attendance of another person or due to being housebound. The Board concludes that the preponderance of the evidence is against the claim for SMC. SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Factual need for aid and attendance is based on criteria set out at 38 C.F.R. § 3.352(a) although it is not required that all of the disabling conditions enumerated therein be found to exist to establish eligibility. In addition, a veteran may receive housebound-rate special monthly compensation if he or she has a service-connected disability rated as permanent and total (but not including a total rating based upon unemployability under 38 C.F.R. § 4.17 ) and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A veteran will be determined to be permanently housebound when he or she is substantially confined to the house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). In this case, the Veteran is service connected for skin and hearing disorders. However, neither the lay nor the medical evidence suggests that the Veteran meets the criteria for SMC due to any service-connected disability, individually or collectively. The record shows that the Veteran had a CVA. However, this is not a service-connected disability. Hence, the evidence is against the claim and it is, therefore, denied. REASONS FOR REMAND 9. Entitlement to a rating higher than 10 percent for bilateral hearing loss is remanded. 10. Entitlement to TDIU is remanded. The Veteran asserts that his bilateral hearing loss warrants a higher rating. Due to inconsistencies in audiometric findings and the 2011 VA medical opinion that the most recent audiometric findings for severely diminished hearing acuity were due to invalid voluntary responses, the Board believes that another VA audiological examination should be conducted to ascertain the severity of the Veteran’s hearing disability. The Veteran is reminded that the “duty to assist is not 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.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate by accurately reflecting his symptoms upon examination regarding the claimed condition. As TDIU is intertwined with the increased rating claim, consideration is deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matter is REMANDED for the following action: 1. Obtain all updated VA audiological treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Discuss the effect of the Veteran's hearing loss on his ability to function in the work-place and on the activities of daily living. The clinician should provide a full explanation if he/she determines that the test results are unreliable due to invalid voluntary responses. (Continued on the next page)   3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel