Citation Nr: 18145956 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-14 174 DATE: October 30, 2018 ORDER Service connection for a cervical spine disorder, status post anterior fusion is dismissed. Service connection for bilateral hearing loss is dismissed. Service connection for coronary artery disease is dismissed. Service connection for erectile dysfunction is dismissed. Service connection for diabetes mellitus is dismissed. Service connection for residuals of a cerebrovascular accident (CVA) is dismissed. Service connection for bilateral peripheral neuropathy upper extremities is dismissed. Service connection for bilateral lower extremity neuropathy is dismissed. Service connection for traumatic brain injury (TBI) is denied. Service connection for a chronic left shoulder disorder is denied. A compensable rating for status post left varicocele repair is denied. REMANDED Entitlement to service connection for a chronic acquired psychiatric disorder, including depression and anxiety, is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. In correspondence received by VA in June 2018, prior to the promulgation of a decision in the appeal, the Veteran’s attorney stated that the Veteran wished to withdraw the appeal seeking service connection for cervical spine disorder, status post anterior fusion; bilateral hearing loss; coronary artery disease; erectile dysfunction; diabetes mellitus; residuals of a CVA; and bilateral peripheral neuropathy of the upper and lower extremities. 2. The Veteran sustained a mild TBI while in service, but did not have any residuals thereafter and current residuals of a TBI are not found. 3. The left shoulder injury that the Veteran sustained during service is not related to rotator cuff disability and bursitis first noted many years after separation from active duty. 4. The residuals of the Veteran’s left varicocele surgery are currently manifested by intermittent testicular pain and tenderness only. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran are met; the Board has no further jurisdiction in the matter of entitlement to service connection for a cervical spine disorder, status post cervical fusion; bilateral hearing loss; coronary artery disease; erectile dysfunction; diabetes mellitus, residuals of a CVA; and bilateral peripheral neuropathy of both upper and lower extremities. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. §§ 20.101, 20.202, 20.204. 2. The criteria for service connection for TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a chronic left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for an increased rating for status post left varicocele repair have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.20, 4.115b, Diagnostic Code (Code) 7523. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from March 1974 to October 1976. Withdrawn Issues The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, a Substantive Appeal may be withdrawn in writing (or at a hearing, on the record) at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In correspondence received from the Veteran’s attorney in June 2018, it was indicated that the Veteran wished to withdraw the appeals seeking service connection for a cervical spine disorder, status post cervical fusion; bilateral hearing loss; coronary artery disease; erectile dysfunction; diabetes mellitus, residuals of a CVA; and bilateral peripheral neuropathy of both the upper and lower extremities. It was also indicated that VA should take no further actions on his claims as to these issues. Hence, there are no allegations of error of fact or law for appellate consideration on these claims. Accordingly, the Board does not have jurisdiction to consider the appeal in these matters, and they are dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Service connection for residuals of a TBI The Veteran contends that he has residuals of a TBI that he sustained while on active duty. Review of the record shows that while on active duty, in January 1975 the Veteran was involved in a motor vehicle accident (MVA) in which he sustained a head injury. An X-ray study at that time showed no significant abnormality. On examination for separation from service, the Veteran reported having had a head injury, but did not complain of having, or having had, headaches and clinical evaluation was normal. Similarly, there was no pertinent abnormality noted on examination by VA in January 1977. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran did sustain a head injury in service and has a current diagnosis of TBI, that diagnosis also includes an opinion that the TBI is resolved and that the Veteran does not have any current residuals from the TBI that he sustained during service. As such, the preponderance of the evidence weighs against finding that the Veteran has current residuals of the TBI sustained during service and there is no basis for a finding that he has current residuals that are related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In reaching that conclusion, the Board reviewed the report from a VA examination conducted in September 2010, wherein it was opined that, while the Veteran had sustained a mild TBI during service, it was not at least as likely as not that he had any current residuals that were related to that incident. The rationale was that any emotional, behavioral, or cognitive signs and symptoms were part of a mental disorder and did not represent residuals of the TBI. Additionally, the examiner noted that there were no physical findings of autonomic nervous system impairment, gait abnormalities, imbalance or tremors; no muscle atrophy or loss of muscle tone; no spasticity, rigidity, or fasciculations; no cranial nerve dysfunction; hearing problems; endocrine dysfunction; skin breakdown; or vision problems. Thus, the examiner found that the Veteran’s mild TBI was resolved without residuals. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In September 2010, the Veteran expressed concern that his VA examiner was a “heavily accented, non native English speaker” and that he was not certain they had been able to communicate well enough for him to respond correctly. The Board has reviewed the September 2010 VA examination report, however, and finds no indication that there was a lack of understanding between the Veteran and his examiner, or that the examination report is otherwise incomplete. In fact, the examination report properly records the history shared by the Veteran as well as his subjective complaints. In June 2017 written argument, the Veteran’s attorney contended that a new VA examination was also warranted because the Veterans Health Administration had, since the original examination in 2010, “mandated that a TBI specialist (physiatrist, neurologist, neuro-psychologist, or neurosurgeon) handle the initial evaluation and diagnosis for possible TBI.” The Board notes that the September 2010 VA examination was conducted by a neurologist and there is nothing in the record indicating that she was not qualified to perform that examination. Moreover, the September 2010 VA examiner’s opinion is supported by other evidence in the record. In February 2016, the Veteran was afforded a VA psychiatric examination in which it was noted that he had been involved in an MVA in service. The examiner stated that the Veteran’s current “significant cognitive defects” were not consistent a history of a mild head injury and were most likely due to his history of multiple CVAs. In March 2016, the Veteran underwent a VA central nervous system and neuromuscular diseases examination for his CVAs. As part of that examination, the examiner noted the Veteran had a scalp laceration in service with a “questionable mild TBI.” The examiner further stated that a neurological examination conducted at the time of the initial treatment was normal and that the Veteran’s service separation examination was also normal neurologically, with no complaints of unconsciousness or other TBI-related issues. Therefore, if there was a TBI, it was mild and resolved. Both the February 2016 and March 2016 VA examiners’ opinions essentially state that the Veteran does not have any current TBI residuals. While the Veteran believes he has residuals of the TBI he sustained during service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body or interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran’s attorney has argued that the Veteran had documented complaints of headache in service and thereafter, the record shows that he did not have such complaints on examination for separation from service or on VA examination in 1977. Consequently, the Board gives more probative weight to the September 2010 medical opinion and the claim is denied. 2. Service connection for a chronic left shoulder disorder The Veteran contends that service connection should be established for residuals of a left shoulder injury that he sustained while in service. Review of the STRs shows that he did complain of left shoulder pain at the time of the 1975 MVA. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left shoulder rotator cuff tendonitis and bursitis and is status post surgery on the left shoulder, and evidence shows that that he did sustain a left shoulder injury in the MVA in January 1975, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left shoulder disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As noted, the Veteran was treated for left shoulder pain following an MVA while on active duty in January 1975, but on examination for separation from service and on VA examination in January 1977, which included an X-ray study, examination of the left shoulder was normal. Private treatment records show the Veteran was treated in May 2007 for left shoulder pain of several months duration. At that time, the diagnoses were left shoulder cuff tendonitis with subacromial bursitis. The Veteran underwent an arthroplasty in June 2007. This was many years after the Veteran’s separation from service. While the Veteran is competent to report having experienced symptoms of left shoulder pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the current left shoulder disability. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body or interpretation of complicated diagnostic medical testing. Jandreau 492 F.3d at 1372. An examination was conducted by VA in September 2010. At that time, the diagnosis was status post left shoulder surgery with residuals left shoulder strain. The VA examiner opined that the Veteran’s left shoulder disorder is not at least as likely as not related to an in-service injury, event, or disease, including the MVA in 1975. The rationale was based on review of the available medical records, medical literature, and clinical experience. The examiner noted that the Veteran had been evaluated on several occasions in 1975 following the MVA and that X-ray studies performed at that time were negative. There was no documentation of a left shoulder disorder during the separation examination and the Veteran’s records were silent for left shoulder disability for almost 30 years. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez 22 Vet. App. at 295. While the Veteran’s attorney argues that the examination is inadequate in that no X-ray studies were performed, the Board notes that the need for an X-ray study is left to the discretion of the VA examiner. Additionally, in this case, it does not appear that X-ray studies were necessary given the report of the arthroscopy performed in 2007, which is contained in the record. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a left shoulder disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. An increased rating for status post left varicocele repair Service connection for status post left varicocele repair was granted by the RO in a April 1977 rating decision. The noncompensable (0 percent) initial disability rating was awarded as being analogous to a testicular atrophy under Code 7523. The Veteran’s current appeal is from an application for increased evaluation. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the function affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). An examination was conducted by VA in September 2010. At that time, it was reported that the Veteran underwent a left varicocele repair in 1974. He stated that he had fathered two children since this repair. Examination showed the testicles to be normal. The Veteran had facial grimacing with examination of the left upper scrotal area, but no masses, swelling, redness, or epididymitis or prostatitis found on examination. The diagnosis was status post left varicocele repair, but residual intermittent testicular pain and no other residuals. The Veteran contends that that the residuals of a left varicocele surgery that was performed during service are more disabling than currently evaluated. It is asserted that the Veteran’s disorder should be evaluated under the provisions of Code 7120 rather than Code 7523. Code 7523 provides ratings for complete atrophy of the testis. For atrophy of one testis, a noncompensable evaluation is warranted. Atrophy of both testis warrants a 20 percent evaluation. 38 C.F.R. § 4.115b. Diagnostic Code 7120 provides ratings for varicose veins. Asymptomatic palpable or visible varicose veins are rated noncompensably (0 percent) disabling. Varicose veins with findings of intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery, are rated 10 percent disabling. Varicose veins with findings of persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, are rated 20 percent disabling. Varicose veins with findings of persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration, are rated 40 percent disabling. Varicose veins with findings of persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration, are rated 60 percent disabling. Varicose veins with findings of massive board-like edema with constant pain at rest are rated 100 percent disabling. A Note to Diagnostic Code 7120 provides that these ratings are for involvement of a single extremity. If more than one extremity is involved, each extremity is to be rated separately and combined (under 38 C.F.R. § 4.25), using the bilateral factor (38 C.F.R. § 4.26), if applicable. 38 C.F.R. § 4.104. The residuals of the Veteran’s left varicocele surgery are currently manifested by intermittent testicular pain and tenderness only. While the Veteran’s attorney has argued that it would be better evaluated under the provisions for varicose veins, the Board does not find evidence of varicosities of the testicle or other similar symptoms. As such, there is no basis for an evaluation under Code 7120. Rather, the rating based on atrophy of the testis is found to be appropriate. As only one testis has been affected, the noncompensable evaluation continues to be warranted. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for increased rating for residuals of a left varicocele, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for a chronic acquired psychiatric disorder, including depression and anxiety, is remanded. The Veteran’s attorney has asserted that the Veteran was treated for alcohol abuse soon after his separation from service and has pointed out that the medical history at the time of separation from service shows complaints of nervousness and depression. She asserts that an additional examination is warranted so that these complaints and the reported treatment that it is asserted began during the 1970’s can be assessed. In light of these contentions, the Board finds that additional development is necessary. Entitlement to service connection for tinnitus is remanded. The Veteran contends that his tinnitus is related to service, and specifically the head injury he sustained in the MVA in January 1975. In February 2012, the Veteran was provided a VA examination. The examiner opined that it was less likely as not that the Veteran’s tinnitus was caused by or the result of military service. The rationale included the fact that the Veteran did not currently meet the criteria for hearing loss disability and he, consequently, did not exhibit hearing loss caused by service. The examiner also explained that the brief and intermittent delayed onset tinnitus reported by the Veteran was not consistent with the more pervasive tinnitus that was commonly found in cases of noise exposure in accordance with a medical text on the subject. The examiner did not, however, comment on whether the tinnitus was etiologically related to the Veteran’s in-service MVA. Therefore, an addendum VA medical opinion is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for treatment facilities or medical care providers from whom he has received treatment for his psychiatric condition and tinnitus since his separation from service. Make two requests for the authorized records from any named medical care provider, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the complaints noted in the medical history form at separation from active duty. (Continued on the next page)   3. Obtain a supplemental medical opinion from an appropriate clinician concerning whether it is at least as likely as not that the Veteran’s tinnitus is related to the head injury he sustained in the MVA in January 1975. If it is determined that the requested opinion may not be provided without a physical examination of the Veteran, such should be scheduled. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio