Citation Nr: 18146216 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-01 957 DATE: October 31, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for dengue fever is denied. Entitlement to service connection for skin cancer is denied. Entitlement to service connection for a right arm growth is denied. Entitlement to a rating in excess of 10 percent for service-connected tinnitus is denied. Entitlement to an earlier effective date prior to March 14, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to an initial rating in excess of 30 percent for PTSD with MDD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss does not constitute a disability for VA purposes. 2. The Veteran does not have a current diagnosis of dengue fever and has not had dengue fever during the appeal period. 3. The Veteran’s skin cancer is not related to his active service. 4. The Veteran does not have a current diagnosis of a right arm growth. 5. The Veteran’s service-connected tinnitus is already assigned the maximum schedular rating authorized under Diagnostic Code 6260. 6. The Veteran’s first claim for service connection for PTSD with MDD was received by VA on March 14, 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for dengue fever have not been met. 38 U.S.C.§§ 1110, 1131, 5107 (2012); 38 C.F.R. § § 3.102, 3.303 (2017). 3. The criteria for entitlement to service connection for skin cancer have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.307, 3.317 (2017) 4. The criteria for entitlement to service connection for a right arm growth have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 5. There is no legal basis for the assignment of a rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.87, Diagnostic Code 6260 (2017). 6. The criteria for entitlement to an earlier effective date prior to March 14, 2011, for the grant of service connection for PTSD with MDD have not been met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1968 to May 1971, January to September 1986, July 1992 to March 1993, September 1995 to February 1996, November 2001 to May 2004, and September 2005 to September 2006. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for a hearing loss disability. 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). However, to establish a current hearing loss disability for VA purposes, hearing examination results must meet the standards of 38 C.F.R. § 3.385. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. In this case, the Board finds service connection is not warranted because the Veteran’s bilateral hearing loss does not meet the criteria to be considered a disability for VA purposes. See 38 C.F.R. § 3.385 (2017). An October 2011 VA audiology examination report showed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 0 10 20 LEFT 20 15 5 20 35 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear, using the Maryland CNC word list. The Veteran, as a layperson, is competent to state that he experiences reduced hearing acuity. His assertion is also credible. However, in this case, he does not possess the training, expertise, or skills needed to determine that his loss of hearing acuity meets the regulatory threshold to be considered a disability for VA purposes. This determination requires administration and interpretation of audiological testing. Therefore, his assertion regarding his hearing loss are less probative that the audiometric testing results from October 2011. Though the Veteran’s comments regarding his hearing loss may be considered, the evidence from the VA audiological evaluation is afforded more probative weight. The Board emphasizes that Congress limits entitlement to service connection for cases where there is a current disability. 38 U.S.C. § 1110. For a veteran’s hearing loss to be deemed a current disability a veteran must meet the criteria set forth in 30 C.F.R. § 3.385. Currently, the Veteran’s hearing loss does not meet the required threshold during the appeal period. While the Board recognizes the Veteran’s lay statements, absent competent evidence of a current disability, service connection must be denied. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Veteran’s claim for service connection for bilateral hearing loss must be denied. 2. Entitlement to service connection for dengue fever The Veteran contends that he has a dengue fever as a result of his active duty service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131. Thus, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually had the disability for which service connection is sought at any time during the period on appeal. In the absence of proof of a disability during that period, there is no valid claim of service connection. See Brammer, 3 Vet. App. at 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). In a March 2001 service treatment record, the Veteran self-reported a history of dengue fever. In an August 2008 treatment note, the Veteran states that he had dengue fever in 1995 while in Haiti, but has not experienced any further problems since he recovered. His dengue fever resolved many years prior to his filing a claim for service connection. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There is no evidence that he has had a diagnosis of dengue fever at any time during the appeal period. Additionally, there is no medical evidence showing that he has residuals of dengue fever, and he has not submitted lay evidence in support of such a finding. As the evidence does not establish that the Veteran had a diagnosis of dengue fever during the period on appeal, the Board finds that service connection is not warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.”). 3. Entitlement to service connection for skin cancer The Veteran seeks service connection for skin cancer. Other than the initial application and notice of disagreement, the Veteran has not provided any supporting documentation in support of why he believes that his skin cancer is due to service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2015). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). As an initial matter, the Board notes that the Veteran’s VA and private treatment records show a history of melanoma, which was surgically removed from the chest in July 2012. As the record shows a diagnosis of skin cancer during the course of this appeal, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In this case, the Veteran’s melanoma first appeared in 2012, more than one year after separation from service. Additionally, the evidence does not show that it was malignant, nor has the Veteran so asserted. Presumptive service connection for his melanoma as a chronic disease is not warranted. The Veteran’s DD-214 shows that he served in the Republic of Vietnam from July 1970 to May 1971. Therefore, he is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). Melanoma is not included in the list of diseases presumptively linked to herbicide exposure, and therefore presumptive service connection as a result of exposure to herbicide agents is not warranted. The RO raised the theory of whether the presumptions set forth in 38 C.F.R. § 3.317 applied to the Veteran’s claim. VA is authorized to compensate any Persian Gulf Veteran with a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117 (2012). The Veteran is a Persian Gulf Veteran. 38 C.F.R. § 3.317(e)(1) (2017). A qualifying chronic disability as that which results from an undiagnosed illness, a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms such as CFS, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), or any diagnosed illness that VA determines in regulations warrants a presumption of service connection for infectious diseases. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2017). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. A medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). A medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. Here, the Veteran’s skin cancer has been medically attributed to a diagnosis of melanoma. Therefore, it is not an undiagnosed illness. Further, it is not a medically unexplained chronic multisymptom illness because it is not characterized by overlapping signs and symptoms. Additionally, melanoma is not an infectious disease as set forth in 38 C.F.R. § 3.317(c)(2). Therefore, presumptive service connection under 38 C.F.R. § 3.317 is not warranted. Although the Veteran is not entitled to a regulatory presumption of service connection for his skin cancer, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), rev’d in part, Combee v. Principi, 4 Vet. App. 78 (1993). As for direct service connection, service treatment records show no complaints of or treatment for a skin condition during service. Moreover, the earliest record of a diagnosis of skin cancer is in a May 2012 treatment note. The Veteran has not submitted lay contentions or evidence regarding direct service connection for skin cancer. There is no medical evidence of record suggesting a link between his skin cancer and service. Furthermore, the Veteran has not submitted medical or lay evidence explaining why his skin cancer is directly related to herbicide exposure or Persian Gulf service. There is no indication in the record that his skin cancer is related to either of these. After review of the record, the Board finds that there is no probative evidence indicating that the Veteran’s skin cancer is related to service. In sum, the preponderance of the competent and probative evidence is against the Veteran’s claim, and service connection for skin cancer is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s service connection claim for skin cancer, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 4. Entitlement to service connection for a right arm growth The Veteran seeks service connection for a right arm growth. Other than the initial application and notice of disagreement, the Veteran has not provided any supporting documentation regarding a right arm growth. 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 the Veteran does not have a current disability that has manifested as a growth on the right arm and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain, 21 Vet. App. at 321 (2007); 38 C.F.R. § 3.303(a), (d). Here, the evidence does not show that the Veteran has had a right arm growth at any time post-service. Accordingly, the Board finds there is insufficient evidence to establish the presence of a current disability. Increased Rating 5. Entitlement to a rating in excess of 10 percent for service-connected tinnitus The Veteran’s tinnitus is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, with a 10 percent rating on and after March 14, 2011. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. At his October 2011 VA examination, the Veteran described his tinnitus as a ringing in his ear. Tinnitus is defined as “a noise in the ears such as ringing, buzzing, roaring, or clicking.” Dorland’s Illustrated Medical Dictionary, 1930 (32nd ed. 2012). Tinnitus is evaluated under Diagnostic Code 6260, which provides for a 10 percent rating for recurrent tinnitus. 38 C.F.R. § 4.87 (2017). A single evaluation is assigned for recurrent tinnitus whether the sound is perceived in one or both ears. Id at Note 2; see Smith v. Nicholson, 451 F.3d 1344 (2006). The Veteran’s tinnitus has been assigned that rating throughout the period on appeal. Because the Veteran’s tinnitus has been assigned the maximum schedular rating throughout the period on appeal, the Board finds there is no legal basis upon which to award a higher evaluation for tinnitus. As such, entitlement to a rating for tinnitus in excess of 10 percent is not warranted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Effective Date 6. Entitlement to an earlier effective date prior to March 14, 2011, for service connection for PTSD with MDD Except as otherwise provided, the effective date for a grant of compensation will be the day following separation from active service or the date entitlement arose, if a claim is received within one year of separation. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The evidence shows that the Veteran did not file a claim for service connection for PTSD with MDD within one year of his separation from a period of service, nor does he so contend. Otherwise, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. Id. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999); see also McGrath v. Gober, 14 Vet. App. 28 (2000). The Veteran filed his first claim for service connection for PTSD with MDD on March 14, 2011. He does not assert, nor does the record show, that he filed a claim prior to that date. The evidence that established entitlement was the positive etiology opinion rendered by the October 2011 private examiner. Thus, entitlement arose in October 2011. The RO assigned the date of claim as the effective date, which is more favorable to the Veteran. Even if entitlement arose prior to March 14, 2011, the assignment of March 14, 2011 as the effective date would be correct, as it would be the later of the two dates. An effective date prior to March 14, 2011, for the grant of service connection for PTSD with MDD is denied. REASONS FOR REMAND 1. Entitlement to service connection for COPD is remanded. The Veteran states his COPD began in September 2006. According to records, the Veteran left his last period of active duty in September 2006. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for COPD because no VA examiner has opined whether the Veteran’s diagnosed COPD is related to his periods of active service. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). 2. Entitlement to a rating in excess of 30 percent for post-traumatic stress disorder (PTSD) with major depressive disorder (MDD) is remanded. In a June 2016 statement, the Veteran asserted that his PTSD with MDD symptoms increased in severity and prohibited him from holding employment. In his October 2011 VA examination, the examiner noted that the Veteran’s PTSD was not the reason for his unemployment. Now, the Veteran contends his symptoms are of a severity to prohibit employment. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD with MDD. 3. Entitlement to a TDIU is remanded. The issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Specifically, the Veteran’s March 2015 PTSD private opinion stated the Veteran is unable to work and has not held employment since leaving active duty. Additionally, in a June 2016 statement, the Veteran stated that his PTSD is symptoms prohibit him from holding employment and requested a TDIU. As such, the issue of entitlement to a TDIU is properly before the Board. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for COPD disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s COPD disability began during active service or is related to his active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD with MDD, including its impact on his ability to work. The entire claims file and a copy of this remand must be made available to the examiner for review. 3. Send the Veteran a VCAA notice letter which advises him of the criteria needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel