Citation Nr: 18146918
Decision Date: 11/02/18	Archive Date: 11/01/18

DOCKET NO. 18-11 147
DATE:	November 2, 2018
ORDER
Entitlement to service connection for a psychiatric disability, diagnosed as unspecified anxiety disorder, is granted.
Entitlement to service connection for temporomandibular joint disorder (TMD) is granted.
A rating in excess of 10 percent for tinnitus is denied.
REMANDED
Entitlement to service connection for a left knee/leg disability is remanded.
Entitlement to service connection for bilateral hearing loss is remanded.
Entitlement to a compensable rating for right eye nasal pinguecula and left eye minimal nasal pterygium is remanded.
Entitlement to a rating in excess of 20 percent for bilateral eye Meibomian gland dysfunction/posterior blepharitis/dry eye is remanded.
Entitlement to a rating in excess of 10 percent (prior to June 6, 2017) and in excess of 20 percent (from June 6, 2017) for lumbar myositis is remanded.
Entitlement to an initial compensable rating (prior to May 25, 2017) and an initial rating in excess of 10 percent (from May 25, 2017) for right wrist ganglion cyst is remanded.
Entitlement to a rating in excess of 10 percent for metatarsalgia is remanded.
Entitlement to a rating in excess of 10 percent for genital warts is remanded.
Entitlement to an initial rating in excess of 30 percent for migraines is remanded.
FINDINGS OF FACT
1. The Veteran’s unspecified anxiety disorder was incurred during his active service.
2. The Veteran’s TMD was incurred during his active service.
3. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code (DC) 6260.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a psychiatric disability, diagnosed as unspecified anxiety disorder, have been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
2. The criteria for entitlement to service connection for TMD have been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
3. There is no legal basis for the assignment of a rating in excess of 10 percent for tinnitus.  38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 2006 to April 2012.
The Veteran had also initiated an appeal of the denial of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating).  However, following a January 2018 statement of the case addressing this issue, the Veteran excluded this issue from the current appeal on his February 2018 VA Form 9 (by stating: “Since I am working [as of] Sept. 2016 – I withdraw IU claim”).  Consequently, this matter is not before the Board.
1. Entitlement to service connection for a psychiatric disability.
The Veteran contends that he currently has a psychiatric disability which began during his military service and has continued to the present.
The medical evidence of record, including the reports of a June 2012 VA psychiatric consultation, an April 2013 VA psychiatric examination, a July 2013 VA psychiatric consultation, and a March 2015 VA psychiatric examination, shows that the Veteran has a current diagnosis of unspecified anxiety disorder.
The Veteran’s service personnel records (SPRs) document that he was punished in service in November 2007 for drunken or reckless operation of a vehicle, aircraft, or vessel.  His service treatment records (STRs) include an April 2012 Report of Medical History which indicated that he had frequent trouble sleeping.
Two months after his April 2012 service discharge, the Veteran underwent a VA psychiatric consultation in June 2012, at which time he reported having psychiatric symptoms (including insomnia, irritability, and poor concentration) which had been “worsening for the last few months.”  The examining psychiatrist diagnosed him with anxiety disorder not specified, with a note to rule out attention deficit disorder.
At an April 2013 VA psychiatric examination, the Veteran was diagnosed with anxiety disorder not otherwise specified.  It was noted that his psychosocial and environmental problems consisted of occupational conflicts during his military tour, and he reported that he felt discriminated against for being Hispanic during his military service.
At a July 2013 VA psychiatric consultation, the Veteran was diagnosed with generalized anxiety disorder.  He reported that he started experiencing anxiety in 2008, while he was in the Navy, due to feeling discriminated against by his superiors because of his race.  He also described his disciplinary problems in service.  In the clinical impression section of the report, the examining psychologist opined that “difficulties with authority figures and low frustration tolerance developed further during [the Veteran’s] military experience in the Navy” and that the Veteran’s “anxiety level may stem from underlying feelings of anger related to his military experience that [he] has been unable to process and work through.”
In an August 2013 statement, a private physician noted that the Veteran had presented psychiatric symptoms (including sleep problems, frustration, and anxiety) since he was in active service, as he reported that during his service he got very concerned and obsessed with the prejudice against Hispanics, he was receiving orders that were unfair, he had episodes where privileges were going to be removed, and he received insults and bad treatment from his superiors.  The private physician also noted that “[s]ince then and until now” the Veteran’s psychiatric symptoms had continued.  The private physician went on to opine that “it is at least as likely as not that his nervous problem is service connected due to treatment he received while at service.”
At a March 2015 VA psychiatric examination, the Veteran was diagnosed with unspecified anxiety disorder.  The Veteran described his psychiatric symptoms (including anxiety) ever since he was in the military.  The VA examiner opined that the Veteran’s unspecified anxiety disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event; for rationale, the VA examiner noted that there was no temporal relationship between anxiety symptom onset and military stressors.
The Board finds that the favorable medical opinion provided by the private physician in August 2013 is supported by a thorough rationale for the conclusion reached, as this rationale took into account the Veteran’s in-service psychiatric symptoms (including the sleep problems which were documented on his April 2012 Report of Medical History therein) and the continuity of such symptoms to the present (as supported by his ongoing VA psychiatric treatment for this condition beginning in June 2012, two months after his service discharge).  Therefore, the Board finds that the August 2013 medical opinion is entitled to substantial weight of probative value and is persuasive of a conclusion that the Veteran’s current unspecified anxiety disorder was incurred during his active service.  In contrast, the Board finds that the unfavorable medical opinion provided by the VA examiner in March 2015 is entitled to less probative weight, as the rationale for that opinion did not take into account the April 2012 Report of Medical History noting frequent trouble sleeping or the Veteran’s reports of continuity of psychiatric symptoms (and his treatment for such) since service.
In light of the foregoing, the Board concludes that service connection for a psychiatric disability, diagnosed as unspecified anxiety disorder, is warranted.  38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).
[The Board also finds that the instant decision applies to – and resolves – all pending claims of service connection for a psychiatric disability, however diagnosed.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).]
2. Entitlement to service connection for TMD.
The Veteran contends that he currently has TMD which began during his military service and has continued to the present.
The medical evidence of record, including the report of an April 2013 VA oral examination, shows that the Veteran has a current diagnosis of TMD.
The Veteran’s STRs document the following pertinent findings.  In January 2009, he was evaluated for a dental implant for tooth #7, which was noted to have been lost in a motor vehicle accident (MVA) in approximately 1990, prior to service entry (PTE).  In August 2009, he underwent the dental implant surgery for tooth #7.  Thereafter, in September 2010, it was noted that he had TMD, characterized as dysfunction and “dislocation, pt. [patient] able to reduce.”
Post-service, at an April 2013 VA oral examination, the Veteran was diagnosed with TMD.  It was noted that his TMD was first diagnosed in February 2009 (i.e., during service) and that he had reported an increase in temporomandibular joint (TMJ) problems after his August 2009 dental implant surgery in service.
In an August 2013 statement, a private physician noted that the Veteran had chronic pain (a “dull ache”) in the muscles of mastication and that his symptoms had appeared after his in-service tooth implant where his jaw was temporarily out of place.  The private physician also noted that the Veteran presented with crepitus at the TMJ during jaw movement.  The private physician went on to opine that “it is at least as likely as not that he is presenting a [TMJ] syndrome that is service connected secondary [to] his dental procedure while at service[.]”
The Board finds that the favorable medical opinion provided by the private physician in August 2013 is supported by a thorough rationale for the conclusion reached, as this rationale took into account the Veteran’s in-service dental implant surgery and subsequent TMD (both documented in his STRs).  Therefore, the Board finds that the August 2013 medical opinion is entitled to substantial probative weight and is persuasive of a conclusion that the Veteran’s current TMD was incurred during his active service.
In light of the foregoing, the Board concludes that service connection for TMD is warranted.  38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).


3. Entitlement to a rating in excess of 10 percent for tinnitus.
The Veteran contends that he is entitled to a higher disability rating for service-connected tinnitus. 
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 
The Veteran’s tinnitus is rated 10 percent under DC 6260.  38 C.F.R. § 4.87.  Pursuant to DC 6260, a 10 percent rating is assigned for recurrent tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  The maximum schedular rating available for tinnitus is 10 percent.  38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006).  As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).
REASONS FOR REMAND
As an initial matter, the Board notes that the Veteran reported on a December 2014 VA Form 8940 (Veteran’s Application for Increased Compensation Based on Unemployability) that a claim for disability from the Social Security Administration (SSA) was “in process.”  On remand, all records pertaining to any applications for and awards of SSA disability benefits should be obtained and associated with the claims file.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  [As noted above, the Veteran excluded the issue of entitlement to a TDIU rating from the current appeal on his February 2018 VA Form 9.]
1. Entitlement to service connection for a left knee/leg disability.
The Veteran contends that he currently has a left knee/leg disability which is related to his military service and/or is secondary to his service-connected metatarsalgia.
The Veteran’s STRs do not note any complaints, findings, diagnoses, or treatment of a left knee or leg disability.
Post-service, at an April 2013 VA knee/lower leg examination, the Veteran was diagnosed with bilateral patellofemoral dysfunction.
In an August 2013 statement, a private physician noted that the Veteran presented with left knee pain.  The private physician also noted that the Veteran’s [service-connected] metatarsalgia caused him pain and altered his gait, and that it was recognized in medical literature that alteration of gait often progresses to leg issues due to weight bearing problems.  The private physician went on to opine: “It is reasonable to assume that it is more likely tha[n] not that [the Veteran’s] left knee problem is service connected due to his feet problem.”  However, the Board finds that this opinion, which appears to be based on a reasonable assumption, is too speculative to be probative.
On remand, after all outstanding treatment records have been obtained, a new VA knee/lower leg examination with medical opinion should be obtained to address any relationship between any current left knee/leg disability and the Veteran’s service-connected metatarsalgia.
2. Entitlement to service connection for bilateral hearing loss.
The Veteran contends that he currently has a bilateral hearing loss disability which is related to loud noise exposure during his military service.
Throughout the entire period of claim, the audiometric test results currently of record (including from a March 2013 VA audiology consultation, an April 2013 VA audiology examination, and a May 2015 VA audiology consultation) do not document a hearing loss disability for VA purposes in either ear in accordance with 38 C.F.R. § 3.385.
The Board cannot make a fully-informed decision on this issue until all outstanding treatment records have been associated with the claims file.  The Veteran should also be scheduled for an updated VA audiology examination to ascertain any current hearing loss – and if and only if a current hearing loss disability for VA purposes in either ear is shown on examination or by the evidence of record, then a medical opinion should be obtained to address any relationship between such hearing loss disability and any incident of the Veteran’s military service (including noise exposure therein).
3. Entitlement to a compensable rating for right eye nasal pinguecula and left eye minimal nasal pterygium.
4. Entitlement to a rating in excess of 20 percent for bilateral eye Meibomian gland dysfunction/posterior blepharitis/dry eye.
Historically, a May 2013 rating decision granted service connection for Meibomian gland dysfunction, posterior blepharitis, dry eyes, and nasal pinguecula, at a 0 percent rating (effective April 16, 2012), under Diagnostic Code (DC) 6037.  A February 2014 rating decision continued the 0 percent rating for this disability under DC 6037, and the Veteran perfected his appeal seeking a compensable rating for such disability.  Thereafter, a January 2018 rating decision continued a 0 percent rating (effective April 16, 2012) for right eye nasal pinguecula and left minimal nasal pterygium under DC 6037, and granted a 20 percent rating (effective April 16, 2012) for bilateral eye Meibomian gland dysfunction/posterior blepharitis/dry eye under DC 6025.  As that award did not represent a total grant of benefits sought on appeal for the Veteran’s service-connected eye disabilities [now rated as two disabilities under two different DCs, as outlined above], the Board finds that a claim for increase as to both such disabilities remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).
During the pendency of the instant appeal, effective May 13, 2018, VA revised the criteria for rating disabilities of the organs of special sense (including eyes).  See 83 Fed. Reg. 15,321-322 (Apr. 10, 2018).  Under both applicable versions of DC 6037 during the appeal period (i.e., the versions in effect both prior to and from May 13, 2018), pinguecula is to be evaluated based on disfigurement (under DC 7800).  While not currently rated under DC 6034, the Board notes that under the version of DC 6034 in effect prior to May 13, 2018, pterygium is to be evaluated based on visual impairment, disfigurement (under DC 7800), conjunctivitis (under DC 6018), etc., depending on the particular findings; and under the version of DC 6034 in effect as of May 13, 2018, pterygium is to be evaluated under the General Rating Formula for Diseases of the Eye, disfigurement (under DC 7800), conjunctivitis (under DC 6018), etc., depending on the particular findings, and combined in accordance with 38 C.F.R. § 4.25.  Furthermore, under both applicable versions of DC 6025 during the appeal period (i.e., the versions in effect both prior to and from May 13, 2018), the maximum rating for disorders of the lacrimal apparatus is 20 percent (for bilateral disability).
During the period of claim, the Veteran underwent VA eye examinations in April 2013 and May 2017, and it was noted on both occasions that he had conjunctivitis.  However, it was not specified as to which of the Veteran’s service-connected eye disabilities (i.e., right eye nasal pinguecula, left eye minimal nasal pterygium, bilateral eye Meibomian gland dysfunction, bilateral eye posterior blepharitis, and bilateral dry eye) may have been manifested by conjunctivitis during the appeal period.  [Under both applicable versions of DC 6018 during the appeal period (i.e., the versions in effect both prior to and from May 13, 2018), active chronic conjunctivitis is entitled to a compensable rating.]
On remand, after all outstanding treatment records have been obtained, a new VA eye examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected eye disabilities.  The examiner should consider all applicable versions of the pertinent eye rating criteria during the appeal period, and should specify which of the Veteran’s service-connected eye disabilities have been manifested by active conjunctivitis at any time during the appeal period.
5. Entitlement to a rating in excess of 10 percent (prior to June 6, 2017) and in excess of 20 percent (from June 6, 2017) for lumbar myositis.
The Board notes that, while the Veteran denied flare-ups of his lumbar myositis disability at VA spine examinations in April 2013 and March 2015, he did report flare-ups of such disability at his June 2017 VA spine examination.  However, there are no medical opinions currently of record addressing the degree(s) of any additional range of motion loss in the Veteran’s lumbar spine due to symptoms during his reported flare-ups.  Furthermore, the June 2017 VA spine examiner reported being unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with flare-ups, as the Veteran was not being examined during a flare-up; specifically, the examiner stated that “to describe a functional limitation in terms of severity (mild, moderate, severe) or terms such as significant versus non-significant based on a possible future event would be mere speculation.”
On remand, after all outstanding treatment records have been obtained, a new VA spine examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected lumbar myositis and to obtain a medical opinion addressing any functional impairment (including the degree(s) of any additional range of motion loss) caused by flare-ups of such disability.  See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011).  At the new examination, if the VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, then the examiner must “elicit relevant information as to the [V]eteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the [V]eteran’s functional loss due to flares based on all the evidence of record, including the [V]eteran’s lay information, or explain why [he or] she could not do so.”  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).

6. Entitlement to an initial compensable rating (prior to May 25, 2017) and an initial rating in excess of 10 percent (from May 25, 2017) for right wrist ganglion cyst.
7. Entitlement to a rating in excess of 10 percent for metatarsalgia.
8. Entitlement to a rating in excess of 10 percent for genital warts.
9. Entitlement to an initial rating in excess of 30 percent for migraines.
The Board cannot make a fully-informed decision on these issues until all outstanding treatment records have been associated with the claims file.
The matters are REMANDED for the following actions:
1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities during the appeal period.  Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile.
2. Obtain the Veteran’s VA treatment records for the period from July 2017 to the present.
3. Request and obtain from the SSA all documents pertaining to any application by the Veteran for SSA disability benefits, including any decisions and/or determinations, and all supporting medical documentation utilized in rendering any decision or determination.  Any negative search result should be noted in the record and communicated to the Veteran.
4. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of any current left knee/leg disability, the nature (and etiology, if applicable) of any current bilateral hearing loss disability, the current severity of each of his service-connected eye disabilities (i.e., right eye nasal pinguecula, left eye minimal nasal pterygium, bilateral eye Meibomian gland dysfunction, bilateral eye posterior blepharitis, and bilateral dry eye), and the current severity of his service-connected lumbar myositis.  The electronic claims file must be made available to the examiners for review in conjunction with the examinations.  All necessary tests (to include audiometric testing for hearing loss and range of motion testing for the lumbar spine) should be performed and the results reported.
(a.) Regarding any current left knee/leg disability: The knee/leg examiner must opine as to whether it is at least as likely as not that such disability is either caused by or aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected metatarsalgia.
(b.) Regarding hearing loss: If and only if a current hearing loss disability for VA purposes in either ear in accordance with 38 C.F.R. § 3.385 is shown on examination or by the evidence of record at any time during the appeal period, then the audiology examiner must opine as to whether it is at least as likely as not that such hearing loss disability developed during the Veteran’s service or within one year of service discharge, or is otherwise related to any incident of his service (including loud noise exposure therein)?
(c.) Regarding the Veteran’s service-connected eye disabilities: All pertinent symptomatology and findings must be reported in detail.  Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible.  The eye examiner should give consideration to all applicable rating criteria during the appeal period (including the versions of the eye rating criteria effective prior to and since May 13, 2018), and should specify which of the Veteran’s service-connected eye disabilities (i.e., right eye nasal pinguecula, left eye minimal nasal pterygium, bilateral eye Meibomian gland dysfunction, bilateral eye posterior blepharitis, and bilateral dry eye) have been manifested by active conjunctivitis at any time during the appeal period.
(d.) Regarding the Veteran’s service-connected lumbar myositis: All pertinent symptomatology and findings must be reported in detail.  Any appropriate DBQ should be filled out for this purpose, if possible.  The spine examiner should provide a medical opinion addressing any functional impairment (including the degree(s) of any additional range of motion loss) caused by the Veteran’s reported flare-ups of his lumbar myositis.  If the spine examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, then the examiner must elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, or explain why he or she cannot do so.
A complete rationale for all opinions must be provided.  If the clinicians cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinicians must provide the reasons why an opinion would require speculation.  The clinicians must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the clinicians must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician.

 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. B. Yantz, Counsel