Citation Nr: 18146641 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-44 522 DATE: October 31, 2018 ORDER Entitlement to service connection for neck disorder is denied. Entitlement to service connection for low back disorder is denied. Entitlement to service connection high cholesterol is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hernia is denied. Entitlement to service connection for thyroid disorder is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for diabetes mellitus, type II, as a result of exposure to herbicides, is granted. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date prior to July 7, 2016 for the award of service connection for tinnitus. REMANDED Entitlement to service connection for swollen, painful joints, bilateral hands is remanded. Entitlement to service connection for swollen, painful joints, bilateral feet is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for kidney disorder is remanded. Entitlement to service connection for prostate disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance/housebound is remanded. FINDINGS OF FACT 1. The Veteran’s neck disorder did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran’s low back disorder did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 3. High cholesterol is a laboratory finding and not a disease or disability under VA law and regulations. 4. There is no competent evidence of a sleep disorder during service or an in-service injury, event or disease. 5. There is no competent evidence of any hernia during service or an in-service injury, event or disease. 6. There is no competent evidence of a thyroid disorder during service or an in-service injury, event or disease. 7. There is no competent evidence of a chronic headache disorder during service or an in-service injury, event or disease. 8. The Veteran was stationed in Vietnam and is presumed to have been exposed to herbicides; he has a current diagnosis of diabetes mellitus, type II. 9. From the date of award of service connection, July 7, 2016, the Veteran’s tinnitus has been rated a maximum scheduler 10 percent rating under Diagnostic Code 6260, and the scheduler criteria are adequate to evaluate such disability. 10. The Veteran did not submit an intent to file a claim for entitlement to service connection for tinnitus, prior to July 7, 2016. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disorder are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for service connection for high cholesterol are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 4. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for hernia are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for thyroid disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 8. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.87, Diagnostic Code 6260. 10. The criteria for assignment of an effective date prior to July 7, 2016, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to December 1969. He served in Vietnam from July 1967 to August 1968. The Veteran, through his representative, has submitted additional private medical evidence along with a waiver of consideration by the Agency of Original Jurisdiction (AOJ). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran has not been afforded an examination in connection with the service connection issues decided herein; however, the Board finds that such is not necessary in the instant case. Specifically, again, the Veteran’s service treatment records are silent as to complaints, findings, or diagnoses of a neck disorder, low back disorder, sleep apnea, hernia, thyroid and headaches. Moreover, the Veteran himself has not described any in-service incidents. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to service connection for neck disorder and low back disorder The Veteran generally contends that his neck disorder and low back disorder manifested during active service. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has arthritis of the neck and lumbar spine, which is a chronic disease under 38 U.S.C. § 1101(3), 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. In this regard, service treatment records are silent with respect to any complaints or diagnoses pertaining to the neck or low back. Further, the November 1969 service examination prior to discharge shows that the Veteran’s neck and spine were clinically evaluated as normal. The examination was silent with respect to any findings of arthritis. Importantly, post-service private clinical records do not show any findings of arthritis until many years after service until approximately 2013. In sum, the Veteran was not diagnosed with arthritis until many years after his separation from service and outside of the applicable presumptive period. Moreover, there is no competent or credible evidence of pertinent symptomatology since service. The Veteran himself has not described any pertinent symptoms. Importantly, private clinical records show complaints of back pain due to an August 2014 motor vehicle accident, many years after the Veteran’s discharge from active service. Service connection for a neck and low back disorders may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s neck and back disorders and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, service treatment records are completely silent with respect to any neck or low back symptoms. Again, the Veteran’s service examination prior to discharge dated in November 1969 showed no such abnormalities. Moreover, the Veteran himself has not described an in-service injury, event or disease that caused his current disorders. In sum, there is simply no competent evidence showing that the Veteran suffered an in-service incident. Further, there is no medical or lay evidence linking any current disability to service. Accordingly, given the lack of any in-service injury, event or disease, or any evidence linking such disorders to service, service connection must be denied. In conclusion, the Board finds that the preponderance of evidence is against the Veteran’s claims for service connection a neck disorder and low back disorder. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Entitlement to service connection high cholesterol The medical evidence of record demonstrates findings of high cholesterol in laboratory reports. However, findings of elevated cholesterol are laboratory results and are not, in and of themselves, disabilities for compensation purposes. See Schedule for Rating Disabilities: Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). The term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. The evidence does not show nor has the Veteran contended that his high cholesterol, a laboratory finding, is a manifestation of an underlying disease that causes impairment in earning capacity. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for sleep apnea, hernia, thyroid disorder and headaches The Veteran has generally asserted that these disorders are related to service. 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 preponderance of the evidence is against finding that the Veteran’s sleep apnea, hernia, thyroid disorder and headaches are related to an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Based on the evidence of record, the Board finds service connection for sleep apnea, hernia, thyroid and headaches is not warranted. Indeed, service treatment records are completely silent with respect to any such problems. The Veteran’s service examination prior to discharge dated in November 1969 showed no such abnormalities. Moreover, the Veteran himself has not described an in-service injury, event or disease that caused his current disorders. In sum, there is simply no competent evidence showing that the Veteran suffered an in-service incident. Accordingly, given the lack of any in-service injury, event or disease, service connection must be denied. In conclusion, the Board finds that the preponderance of evidence is against the Veteran’s claim for service connection for sleep apnea, hernia, thyroid and headaches. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Entitlement to service connection for diabetes mellitus, type II The Veteran contends that he developed diabetes mellitus due to his exposure to herbicides. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). Service personnel records show that the Veteran served in Vietnam during the presumptive period and, thus, is presumed exposed to herbicide agents. Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions, including diabetes mellitus, type II, even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Based on private clinical records, the Board finds that the Veteran has a current diagnosis of diabetes mellitus, type II. Accordingly, because he currently suffers from a disease that has been identified as associated with herbicide exposure (i.e., diabetes mellitus, type II) and was exposed to herbicide agents during service, the Board finds that the Veteran is entitled to service connection for diabetes mellitus, type II, on a presumptive basis. 38 C.F.R. § 3.309(e). Increased Rating Entitlement to an initial rating in excess of 10 percent for tinnitus The Veteran generally contends that a rating in excess of 10 percent is warranted for his tinnitus, but has provided no specific argument in support of his claim. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A Veteran is limited to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a higher schedular disability rating for tinnitus, his claim for a rating in excess of 10 percent on a schedular basis must be denied. The law, in particular the regulation governing schedular evaluation of tinnitus, is dispositive of the claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Earlier Effective Date Entitlement to an effective date prior to July 7, 2016 for the award of service connection for tinnitus The Veteran contends that he is entitled to an effective date prior to July 7, 2016, for the grant of service connection for tinnitus. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. Importantly, effective March 24, 2015, prior to the Veteran filing his current claim for service connection, VA amended its regulations to require all claims be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The Veteran filed an application for service connection on the standard form, which was received by the RO on July 7, 2016. Importantly, there is no evidence that indicates any intent on the part of the Veteran to apply for compensation for tinnitus prior July 7, 2016. Moreover, the Veteran has not asserted that he filed a claim prior to this date. He previously filed an application in April 2015, but there is no mention of tinnitus in this application. In conclusion, the Board is precluded by statute from assigning an effective date prior July 7, 2016, for the granting of service connection for tinnitus. Accordingly, the preponderance of the evidence is against the claim for an effective date earlier than July 7, 2016. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for swollen, painful joints, bilateral hands, swollen, painful joints, bilateral feet, hypertension and kidney disorder Current private medical records appear to indicate that these disabilities may be associated complications of the Veteran’s now service-connected diabetes mellitus. Thus, in light of the award of service connection for diabetes mellitus herein, the Board finds that a VA examination and/or opinion is necessary to address the etiology of these disorders. Further, service treatment records also document injuries to the hands and feet. As such, the VA examiner should also opine whether any current disorders are due to these in-service injuries. Entitlement to service connection for prostate disorder is remanded. Service treatment records show that the Veteran suffered from chronic prostatitis. Thus, a VA examination and/or opinion is necessary to determine whether any current prostate disorder is related to the in-service disease. Entitlement to service connection for an acquired psychiatric disorder is remanded. Likewise, service treatment records show that the Veteran suffered from an anxiety reaction. Thus, a VA examination and/or opinion is necessary to determine whether any current psychiatric disorder is related to the in-service disease. Entitlement to SMC based on the need for aid and attendance is remanded. As the Veteran’s claim for SMC is inextricably intertwined with the other issues on appeal being remanded, it is remanded pending their adjudication. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any swollen, painful joints, bilateral hands, swollen, painful joints, bilateral feet, hypertension and kidney disorder. If the Veteran is unable to report to an examination, a medical opinion should be obtained from an appropriate clinician. The examiner should opine whether it is at least as likely as not that any of these conditions are a complication of, proximately due to, or aggravated by the Veteran’s service-connected type II diabetes mellitus. With respect to any disabilities of the hands and feet, the examiner must also opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the documented hands and feet injuries. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any prostate disorder. If the Veteran is unable to report to an examination, a medical opinion should be obtained from an appropriate clinician. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the documented chronic prostatitis. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. If the Veteran is unable to report to an examination, a medical opinion should be obtained from an appropriate clinician. The examiner must opine whether it is at least as likely as not   related to an in-service injury, event, or disease, including documented anxiety reaction. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats