Citation Nr: 18148733 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 17-33 006 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss (claimed as bilateral cerumen impaction causing hearing loss) is denied. Entitlement to service connection for Vitamin D deficiency is denied. Entitlement to service connection for periodontal disease (claimed as gingivitis) is denied. Entitlement to an initial rating greater than 10 percent for vertigo (claimed as positional paroxysmal vertigo and bilateral vestibular weakness secondary to bilateral cerumen impaction causing hearing loss) is denied. Entitlement to an initial rating greater than 10 percent for tinnitus, left ear is denied. Entitlement to an initial compensable rating for exercise-induced asthma is denied. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) (claimed as hiatal hernia) is denied. Entitlement to an initial rating greater than 10 percent for De Quervain's tenosynovitis, right wrist is denied. REMANDED Entitlement to service connection for tenosynovitis of biceps tendon is remanded. Entitlement to service connection for hypertensive heart disease is remanded. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability for VA compensation purposes. 2. The Veteran’s Vitamin D deficiency is not a disability for VA compensation purposes. 3. The Veteran does not have a dental disability for VA compensation purposes. 4. The Veteran’s vertigo was not characterized by dizziness and occasional staggering. 5. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code (DC) 6260. 6. For the entire appeal period, the Veteran’s asthma has not been productive of pulmonary function test (PFT) findings of a FEV-1 of 71 to 80 percent predicted; or FEV-1/FVC of 71 to 80 percent; and does not require the use of intermittent inhalational or oral bronchodilator therapy. 7. The evidence of record throughout the appeal period demonstrates that the Veteran’s GERD has, at worst, manifested symptoms of reflux and nausea, but without dysphagia, regurgitation, and substernal arm or shoulder pain. 8. The Veteran is already in receipt of the maximum available rating for limitation of motion in his right wrist; ankylosis of the right wrist has not been shown. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for a Vitamin D deficiency have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for entitlement to service connection for periodontal disease for purposes of entitlement to VA compensation have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150. 4. The criteria for a rating greater than 10 percent for vertigo have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6204. 5. There is no legal basis for the assignment of a schedular rating greater than 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260. 6. The criteria for an initial compensable rating for exercise-induced asthma are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.97, Diagnostic Code 6602. 7. The criteria for an initial compensable rating for service-connected GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. 8. The criteria for an initial rating greater than 10 percent for De Quervain’s tenosynovitis, right wrist, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.71a, Diagnostic Code 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps on active duty from June 1993 to April 1997. The Veteran's claim of entitlement to service connection for periodontal disease, which is considered a dental disability, raises both the issue of service connection for compensation purposes and service connection for treatment purposes. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). A claim of entitlement to service-connection for a dental disability for treatment purposes only is separate and distinct from a claim of entitlement to service-connection for a dental disability for compensation purposes. 38 C.F.R. § 3.381 . The claim for periodontal treatment is referred to the RO for appropriate action. 38 C.F.R. § 19.9 (b). Specifically, the RO should consider whether to refer the claim for dental treatment to the appropriate VA Medical Center. 1. Entitlement to service connection for bilateral hearing loss (claimed as bilateral cerumen impaction causing hearing loss) Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 March 2017 the Veteran underwent a VA audiological examination in conjunction with this claim. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 10, 10, 10, 10, and 10 dB respectively. Speech recognition score obtained using the Maryland CNC Test was 100 percent for the right ear. The evidence shows that the Veteran does not currently have hearing loss in the right ear for VA purposes. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 10, 10, 10, 15, and 15 dB respectively. Speech recognition score obtained using the Maryland CNC Test was 100 percent for the left ear. The evidence shows that the Veteran does not currently have hearing loss in the left ear for VA purposes. Therefore, service connection for bilateral hearing loss is denied based on no current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110. 2. Entitlement to service connection for Vitamin D deficiency The Veteran contends that his Vitamin D deficiency was caused or aggravated by his active duty service. Vitamin D deficiency, however, is not a disability, per se, for which VA compensation may be awarded. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Rather, the Veteran’s Vitamin D deficiency is a laboratory-confirmed clinical finding characterized by lack of sufficient vitamin D. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 888, 890, 2068 (32nd ed. 2012). Although a Vitamin D deficiency may be considered a risk factor in the development of certain diseases, it is not a disease, injury, or disability, in and of itself, for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities; therefore, they are not appropriate entities for the rating schedule). Furthermore, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Allen v. Brown, 7 Vet. App. 439 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). The evidence does not suggest that the Veteran’s Vitamin D deficiency, cause him any impairment of earning capacity. Because Vitamin D deficiency is not a current disability for which service connection may be granted, the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the Veteran’s claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. 3. Entitlement to service connection for periodontal disease (claimed as gingivitis) Dental disabilities are treated differently than medical disabilities in the VA benefits system. Under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150 (setting forth the schedule of ratings for dental and oral conditions). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. In cases such as this, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As noted above, the Veteran seeks service connection for periodontal disease, claimed as gingivitis. Despite the clear evidence of periodontal disease, there is no legal entitlement to compensation benefits predicated upon service connection for periodontal disease, and therefore, the claim must be denied. 4. Entitlement to an initial rating greater than 10 percent for vertigo (claimed as positional paroxysmal vertigo and bilateral vestibular weakness secondary to bilateral cerumen impaction causing hearing loss) The Veteran’s service-connected vertigo is rated as 10 percent disabling under 38 C.F.R. § 4.87, DC 6204. The Veteran contends that he is entitled to a higher initial rating. Under DC 6204, a 10 percent rating is warranted for occasional dizziness. A 30 percent rating is warranted for dizziness and occasional staggering. The term “staggering” is not defined in the rating schedule, but is generally defined as standing or proceeding unsteadily. See Webster’s New College Dictionary 1099 (3rd ed. 2008). The Veteran is competent to report symptoms such as dizziness, staggering, and loss of balance, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded a VA examination in March 2017. The examiner noted a diagnosis of peripheral vestibular disorder and cerumen impaction. The Veteran reported vertigo episodes are associated with positional changes such as lying down and rising. The Veteran has not been diagnosed with Meniere’s syndrome. The examiner noted that the Veteran does not have a benign or malignant neoplasm or metastases. The examination did not reveal a disturbance of balance, a staggering gait, or a cerebellar gait. In this case, the record is bare of evidence of treatment sought or received for vertigo during the appeal period. Moreover, the Veteran does not appear to have complained of staggering, at any frequency, to any provider or examiner during the period on appeal. As noted above, a higher evaluation of 30 percent is not warranted unless the evidence shows both dizziness and occasional staggering. As there is no evidence of staggering during this period, a higher evaluation of 30 percent is not warranted. The Board has also considered whether a higher evaluation is warranted under a different diagnostic code. Although a 30 percent rating is the maximum schedular rating for vertigo under DC 6204, higher maximum schedular evaluations are authorized for Meniere’s syndrome. However, in this case, the record does not reveal such a diagnosis. Higher evaluations are also available for malignant neoplasm of the ear, but, as noted above, that diagnosis has been ruled out. Thus, a higher rating under these diagnostic codes are not appropriate. The preponderance of the evidence is against an increased rating greater than 10 percent for the Veteran’s service connected vertigo. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 5. Entitlement to an initial rating greater than 10 percent for tinnitus, left ear The Veteran claims entitlement to a disability rating greater than 10 percent for his tinnitus. Diagnostic Code 6260 provides for a 10 percent disability rating for recurrent tinnitus. That rating is the maximum assignable for tinnitus under Diagnostic Code 6260, and it applies whether the sound is perceived in one ear, both ears, or in the head. See Note (2) following 38 C.F.R. § 4.87, Diagnostic Code 6260. The facts are not in dispute. Resolution of the Veteran’s appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, DC 6260. Regardless of whether the Veteran’s tinnitus is perceived as unilateral or bilateral-in one or both ears, a single 10 percent rating is the maximum rating assignable. Id. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, or for that matter, an evaluation greater than 10 percent on any basis, granting the Veteran’s appeal is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The law, not the underlying facts, is dispositive in this matter. 6. Entitlement to an initial compensable rating for exercise-induced asthma The Veteran’s exercise-induced asthma is currently rated as noncompensable, under 38 C.F.R. § 4.97, Diagnostic Code 6602. Under DC 6602, pertaining to asthma, bronchial, a 10 percent rating is assigned for asthma for Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is assigned for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating is assigned for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Therefore, in order to get a compensable initial rating, the Veteran must show that he meets these requirements based on the objective results of a PFT, takes the requisite medication, or meets the threshold based on his visits to a physician to treat exacerbations. Unfortunately, however, the preponderance of evidence does not demonstrate this level of greater impairment. A February 2017 VA examination report reflects a pre-bronchodilator PFT result of FEV-1 of 130 percent predicted and FEV-1/FVC of 103 percent, and post-bronchodilator result of FEV-1 of 137 percent and FEV-1/FVC of 103 percent. The examiner stated that the FEV-1 percent predicted most accurately reflected the Veteran’s level of disability. At examination, the Veteran reported chest tightness, fatigue, and shortness of breath with wheezing, at least monthly. The Veteran reported that he currently is not using medications or inhalers. The examiner noted that the Veteran does not require the use of oral or parenteral corticosteroid medication; inhaled medications, oral bronchodilators; antibiotics; or outpatient oxygen therapy. The examiner noted that the Veteran has not had any asthma attacks with episodes of respiratory failure in the past 12 months. In addition, the examiner reported that the Veteran has not had any physician visits for required care of exacerbations. Based on the preponderance of the evidence, the Board finds that the criteria of a compensable initial rating are not met for the Veteran’s service-connected exercise-induced asthma. The evidence does not reflect PFT measurements of FEV-1 of 71 to 80 percent predicted or lower, or, FEV-1/FVC of 71 to 80 percent or lower. Additionally, the Veteran did not require intermittent inhalational or oral bronchodilator therapy at any point in time during this appeal. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is inapplicable, and the claim for an initial compensable rating for exercise-induced asthma must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 7. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) (claimed as hiatal hernia) The Veteran’s service-connected gastroesophageal reflux disease (GERD) is rated as noncompensable, pursuant to the criteria of 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. As there is no Diagnostic Code for GERD, the disability is rated by analogy under the Schedule of Ratings for the digestive system. 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. Under Diagnostic Code 7346, a 10 percent evaluation is warranted when there are two or more of the symptoms required for a 30 percent evaluation, but with less severity. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation is warranted when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. The Veteran was afforded a VA examination in March 2017. The examiner indicated that the Veteran has symptoms of reflux, sleep disturbance caused by esophageal reflux, and nausea due to the Veteran’s GERD condition. It was noted that the Veteran had no stricture, spasm, or diverticulum of the esophagus, nor did he have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his GERD. The aforementioned evidence reflects that the Veteran’s GERD has been manifested by acid reflux, sleep disturbances, and nausea. In addition, the Veteran has reported a history of epigastric burning and reflux. The Veteran also reported taking over the counter medication to include TUMS and Zantac. There is no other medical evidence of record, including in the Veteran’s service treatment records, that conflicts with the above findings upon VA examination. The record remains absent of any evidence of dysphagia (difficulty swallowing) or substernal, arm, or shoulder pain due to GERD. While the Board acknowledges the Veteran’s GERD symptoms to include reflux and nausea, without evidence of two or more of the symptoms for the 30 percent rating of less severity, entitlement to a compensable rating is not established. The Board acknowledges that the Veteran takes over-the-counter medication to control his symptoms and that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The evidence, however, does not demonstrate additional symptomatology that would substantiate a compensable rating without medication. The Board has also considered rating of the Veteran’s GERD under other diagnostic criteria for gastrointestinal disabilities. See 38 C.F.R. § 4.114, Diagnostic Codes 7301-54. The Veteran’s GERD, however, has not been shown to have resulted in any symptomatology which would, in the context of different diagnostic criteria, result in a higher rating. Based on the foregoing, the Board finds that the preponderance of the evidence is against assignment of an initial compensable rating for his service-connected GERD. Thus, a higher rating is not warranted. 38 C.F.R. §§ 4.3, 4.7. 8. Entitlement to an initial rating greater than 10 percent for De Quervain's tenosynovitis, right wrist The Veteran’s service-connected De Quervain’s tenosynovitis, right wrist has been evaluated pursuant to the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5215, relating to limitation of motion of the wrist. Pursuant to Diagnostic Code 5215, a 10 percent disability rating is warranted where palmar flexion is limited in line with the forearm, or where dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. This is the maximum schedular rating based on limitation of motion of the wrist under this diagnostic code. A higher schedular rating is only warranted when there is evidence of ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Under Diagnostic Code 5214, with respect to the major extremity, a 30 percent rating is warranted where there is favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion. A 40 percent rating is warranted where there is ankylosis of the wrist in any other position, except favorable. A maximum 50 percent rating is warranted where there is unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. A note following Diagnostic Code 5214 states that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a, Diagnostic Code 5214. The Veteran was afforded a VA examination in February 2017. The Veteran reported flare-ups of the wrist and expressed that he has difficulty writing or holding objects during a flare-up. The Veteran did not report having any functional loss or functional impairment. The examiner noted that the Veteran’s right wrist range of motion was abnormal and pain was noted on examination. However, pain did not result in functional loss. The examiner expressed that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit the Veteran’s functional ability with repeated use over a period of time. In addition, the examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. The examiner indicated that the examination must be performed during a flare-up to provide an opinion. Ankylosis of the wrist joint was not present. For the evidence to justify a schedular rating greater than 10 percent, the record would have to show evidence of ankylosis of the wrist which is not present in this case. As explained, the criteria under DeLuca, supra, 8 Vet. App. 202, regarding an additional rating based on functional loss, are moot with regard to the wrist because the maximum rating has been assigned based on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that 38 C.F.R. § 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for tenosynovitis of biceps tendon is remanded. The evidence shows that the Veteran may have tenosynovitis of biceps tendon. See January 2017 Clinica de Medicina Familiar private treatment record. To date, the Veteran has not been afforded a VA examination in conjunction with this claim. Accordingly, an examination to clarify the Veteran’s diagnosis or diagnoses and their relation to his service, if any, is necessary. See McLendon, 20 Vet. App. at 83. 2. Entitlement to service connection for hypertensive heart disease is remanded. Regarding the claim for hypertensive heart disease, the Board finds the March 2017 VA examination opinion to be inadequate. The examiner expressed that the Veteran’s coronary artery disease and hypertensive heart disease are less likely than not incurred in or caused by service because the Veteran’s report of medical examination dated in February 1997 was silent for a diagnosis and treatment of hypertension, hypertensive heart disease, or a heart condition. A negative opinion that is based solely on an absence of documentation in the records is insufficient to deny service connection and is therefore inadequate. An adequate medical opinion, for the purposes of evaluating a Veteran’s disability, provides rational analysis that takes into consideration the Veteran’s lay statement and medical history to support its conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). A medical examination and opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, an updated examination opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for appropriate VA examinations to determine the nature and etiology of any current tenosynovitis of biceps tendon and hypertensive heart disease. Regarding tenosynovitis of biceps tendon, the examiner should answer the following: Determine if the Veteran has a tenosynovitis of biceps tendon. If the Veteran has tenosynovitis of biceps tendon, is it at least as likely as not caused by or aggravated by the Veteran’s service? 3. Regarding hypertensive heart disease, the examiner should answer the following: (Continued on the next page)   Is it at least as likely as not that the Veteran’s hypertensive heart disease was caused by or aggravated by the Veteran’s service? A complete rationale must be provided for all opinions and conclusions rendered. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D., Associate Counsel