Citation Nr: 18148997 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-32 247 DATE: November 8, 2018 ORDER Entitlement to service connection for cervical strain with muscle spasms, claimed as a cervical condition, is denied. Entitlement to service connection for dizziness is denied. Entitlement to service connection for left lower extremity circulatory problems is denied. Entitlement to service connection for right lower extremity circulatory problems is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for erectile dysfunction (due to medications), associated with degenerative joint disease with mild disc herniation L4-L5, bilateral L4-S1 lumbar spine is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for sleep apnea is remanded. Entitlement to an increased initial compensable evaluation for service-connected gastroesophageal reflux disease (GERD) is remanded. Entitlement to an increased initial compensable evaluation for service-connected peripheral chorioretinal scar left eye with vitreous floaters is remanded. Entitlement to an increased evaluation in excess of 30 percent for service-connected bronchial asthma is remanded. Entitlement to an increased evaluation in excess of 20 percent for service-connected degenerative joint disease with mild disc herniation L4-L5, bilateral L4-S1 lumbar spine is remanded. Entitlement to an increased evaluation in excess of 20 percent for service-connected left lower extremity L4-S1 lumbar radiculopathy condition associated with mild disc herniation L4-L5, bilateral L4-S1 lumbar spine is remanded. Entitlement to an increased evaluation in excess of 20 percent for service-connected right lower extremity L4-S1 lumbar radiculopathy condition associated with mild disc herniation L4-L5, bilateral L4-S1 lumbar spine is remanded. FINDINGS OF FACT 1. The probative medical evidence of record does not show that the Veteran experienced any event, injury, or disease in military service upon which to base service connection for his currently diagnosed cervical strain with muscle spasms, nor is there any indication of any nexus. 2. There has been no demonstration by competent medical or competent and credible lay evidence of record that the Veteran has a current disability manifested by dizziness or bilateral lower extremity circulatory problems. CONCLUSIONS OF LAW 1. Cervical strain with muscle spasms were not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. Disabilities manifested by dizziness or bilateral lower extremity circulatory problems were not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to September 1992, from January 2003 to April 2004, and from July 2004 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of February 2013, July 2014, and February 2018 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). 1. Cervical Strain The Veteran contends that he currently suffers from a disability of the cervical spine that is the result of military service. In this regard, the Veteran has not provided any clear indication of the event, injury, or disease in military service upon which he has based his assertion of service connection. Rather, in his July 2012 claim, he vaguely referenced “accidents” during his deployment to Iraq. A review of the Veteran’s service treatment records was absent for any discussion of complaints or diagnoses of any conditions affecting the neck or cervical spine. A review of the Veteran’s post-service outpatient treatment records reveals that he has been followed for treatment of cervical strain and muscle spasms since 2013. There was no discussion of etiology to military service in this regard. The Veteran was provided with a VA examination in July 2014. At the examination, upon a review of the claims file, subjective interview, and objective testing, the VA examiner diagnosed the Veteran with cervical strain and muscle spasms. The VA examiner opined that the Veteran’s disability was less likely than not caused by or incurred in military service. In support, the VA examiner provided that there was no indication of any specific injury to which the Veteran’s current cervical spine disability could be attributed. Rather, in accordance with accepted medical literature and knowledge, the VA examiner found it more likely that the Veteran’s cervical spine disability was the result of poor sleep positioning habits. Having reviewed the complete record, the Board finds that service connection for cervical strain with muscle spasms is not warranted. In sum, there is no in-service event, injury, or disease upon which to base service connection in accordance with 38 C.F.R. § 3.303 for any of these claimed disabilities. Although the Veteran has currently diagnosed disabilities of the cervical spine, there has been no indication in either the lay or medical evidence of record that these disabilities are attributable to an event, injury, or disease in military service. Here, the Veteran’s service treatment records do not show that he was treated for or diagnosed with any complaints of the neck or cervical spine during military service. This is despite the fact that the Veteran was even seen on numerous occasions for such ailments as respiratory and stomach illness, as well as other musculoskeletal ailments such as his back, ankle, and hands. Therefore, it is reasonable to presume that, had the Veteran also experienced symptoms of his neck or cervical spine during military service, those would have also been reported and recorded in the service treatment records. Because such discussions are absent, it is clear that such events, injuries, or diseases never occurred. Therefore, due to the lack of a substantiated in-service event, injury, or disease, the Veteran’s claim on a direct basis fails. The only other evidence in the claims file supporting the existence of cervical strain with muscle spasms that is the result of military service are the Veteran’s own statements. The Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, it is clear, based on a detailed review of the statements overall, that the Veteran does not have any actual specialized knowledge of medicine, or orthopedics more particularly, and that he is merely speculating as to whether he has such a relationship. In this regard, he is not competent to formulate such a nexus opinion, as such diagnoses require specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran’s statements to the effect that he has showing of nexus are lacking in probative value, and are far outweighed by other evidence of record showing no treatment for cervical disabilities during service or that any such disabilities are the result of an event, injury, or disease in military service. Accordingly, for the reasons and bases discussed above, service connection for cervical strain with muscle spasms is denied. 2. Dizziness and Bilateral Lower Extremity Circulatory Problems The Veteran contends that he currently suffers from disabilities resulting in dizziness and bilateral lower extremity circulatory problems. In regard to dizziness, the Veteran contends that upon leaving military service, he began to experience this symptom and has regularly required the assistance of others for stability. In regard to the circulatory problems, the Veteran claims that he has experienced numbness and tingling in his bilateral lower extremities since 2006 and that he attributes this to a problem with circulation. A review of the Veteran’s service treatment records is negative for any showing of complaints, treatment, or diagnoses of any disabilities resulting in dizziness and bilateral lower extremity circulatory problems. A review of the Veteran’s post-service outpatient treatment records do not reveal any complaints, treatment or diagnoses of disabilities resulting in dizziness and bilateral lower extremity circulatory problems. The Veteran had a VA examination performed on July 2012 for his complaints of bilateral lower extremity circulatory problems. Upon a review of the claims file, subjective interview, and objective testing, the VA examiner found that the Veteran had no diagnosed circulatory disabilities affecting his bilateral lower extremities. Rather, it was noted that the Veteran may have radiculopathy due to his lower back disability that was responsible for any complaints of numbness or tingling. In the June 2018 Informal Hearing Presentation, the Veteran’s representative maintained that the examiner should have performed Doppler or Ultrasound studies but the Board finds that if such studies were deemed clinically indicated by the examiner, such studies would have been conducted. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of a disability manifested by dizziness and/or bilateral lower extremity circulatory problems, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability “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 and that a claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim.” See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of a disability manifested by dizziness and/or bilateral lower extremity circulatory problems during the relevant period on appeal. Rather, with regard to the Veteran’s claimed circulatory problems, the medical evidence of record suggests that the Veteran’s already service-connected radiculopathy accounts for such symptoms. A review of current medical evidence since the filing of the Veteran’s claims does not show any relevant current diagnosis for any of the aforementioned claimed disabilities. Last, the Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. Barr, 21 Vet. App. at 308-310. However, it is clear, based on a detailed review of the statements overall, that the Veteran has no actual specialized knowledge of medicine in general, or neurology or cardiology more particularly, and that he is merely speculating as to whether he has a current diagnosis of a disability manifested by dizziness and/or bilateral lower extremity circulatory problems. In this regard, he is not competent to diagnose such disabilities, as they require specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran’s statements to the effect that he has a current diagnosis of a disability manifested by dizziness and/or bilateral lower extremity circulatory problems are lacking in probative value. There is also no persuasive evidence that the Veteran has symptoms that result in any functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). Therefore, the most probative evidence of record reflects that the Veteran lacks a diagnosis of a disability manifested by dizziness and/or bilateral lower extremity circulatory problems during the appeals period. Absent the required diagnosis of a disability manifested by dizziness and/or bilateral lower extremity circulatory problems at any time during the appeals period, there is no current disability to attribute to the Veteran’s military service. Brammer, 3 Vet. App. at 223. For the reasons provided above, the preponderance of evidence is against the Veteran’s claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert, 1 Vet. App. at 49; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Bilateral Hearing Loss, Tinnitus, PTSD, Erectile Dysfunction, GERD, Bronchial Asthma, Lumbar Spine, Bilateral Lower Extremity Radiculopathy, and Sleep Apnea At the outset, the Board notes that additional evidence via VA outpatient treatment records and VA examinations have been received since the Veteran’s last statement of the case (SOC). While the RO purported to certify the case to the Board in October 2015, the RO went on to conduct a substantial amount of additional development. The Veteran was finally notified that his case was transferred to the Board in February 2018. The Veteran received the SOC in August 2015 and the records reflect treatment and examinations that have been provided since that time for the Veteran’s disabilities relating to his bilateral hearing loss, tinnitus, erectile dysfunction, GERD, bronchial asthma, lumbar spine, and bilateral lower extremity radiculopathy. In particular, the Veteran was provided with VA examinations for bilateral hearing loss, tinnitus, PTSD, GERD, bronchial asthma, erectile dysfunction, and bilateral lower extremity radiculopathy in January 2016 and another VA examination for his lumbar spine in June 2016. There is no indication that these VA outpatient treatment records or VA examinations were subsequently reviewed by the RO in a supplemental statement of the case (SSOC). Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, or is submitted by the appellant or representative in response to a § 20.903 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction under § 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304 (c). Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing. Id. Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues. Id. However, it should be noted that section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), has addressed new procedures for claims in which new evidence was received after the last SOC or SSOC without a waiver of agency of original jurisdiction (AOJ) consideration. Under that provision, if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Therefore, such claims should not be remanded solely for consideration of such new evidence without a request from the Veteran. In this regard, the Board further notes that the Veteran’s appeals were perfected in August 2015, well after the February 2, 2013 deadline, so the new provisions prohibiting remand for newly submitted evidence would apply. However, it is also noted that, currently, VA has not interpreted the aforementioned amendment to extend to evidence that was not submitted by the Veteran, such as evidence that was suggested by a submission, but gathered separately pursuant to the duty to assist. Here, it appears that the RO independently developed evidence that is relevant to the Veteran’s claims by virtue of the recently obtained VA outpatient treatment records and VA examinations referenced above. These records, that appear to have been obtained and associated with the claims file after the Veteran’s August 2015 SOC, detail the Veteran’s treatment, severity, and etiologies for his bilateral hearing loss, tinnitus, erectile dysfunction, GERD, bronchial asthma, lumbar spine, and bilateral lower extremity radiculopathy. As such, the Board finds that these records are pertinent to the inquiry at hand in regard to the Veteran’s claims. The Veteran did not submit the evidence in question (i.e. the VA outpatient treatment records and VA examinations). Rather, this evidence was developed by VA based upon its duty to assist. Due to the substantial amount of additional evidence and the type of evidence (VA examination reports), the Board finds it more appropriate for the RO to consider this evidence in the first instance rather than seek a waiver from the Veteran to ensure the Veteran receives the full benefit of “one review on appeal” under U.S.C. § 7104(a). As such, the claims should be remanded so that the RO may review this evidence in light of the Veteran’s appeal and consider it accordingly. Furthermore, for the Veteran’s lumbar spine, the Board observes that a recent precedential opinion that may impact this case was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. In this case, the examination forms used in the administration of the Veteran’s prior VA examinations appears to have used a format that did not contain any discussion of these presentations as appear to have been contemplated by the holding in Correia. Accordingly, the Veteran should be afforded a new VA examination for the lumbar spine to comply with this case. Additionally, this remand will also afford the RO the opportunity to ask the clinician who conducts the VA examination requested above to apply a decision issued by the Court, Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court noted that the VA’s Clinician’s Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flares from Veterans. The Court in Sharp found that the examination in question in that case to be inadequate because the examiner, although acknowledging that the appellant was not then suffering from a flare of any of his conditions, failed to ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. Id. The prior VA examinations discussed above did not reflect the considerations required by Sharp, and the instructions to the examiner below will request such consideration. Last, because the Veteran’s claims for his GERD, bronchial asthma, and bilateral lower extremity radiculopathy are for increased evaluations and it has been almost three years since his last examination for these conditions, the Board finds that new examinations should also be afforded to determine the current severity for these disabilities. VA has a duty to assist Veterans to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 § C.F.R. § 3.159 (2017). This duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this regard, VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated or when the available evidence is too old to adequately evaluate the current state of the condition. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). 2. Left Eye The Veteran was last provided with a VA examination for his peripheral chorioretinal scar left eye with vitreous floaters in September 2012, over six years ago. The Board, therefore, finds that it would be appropriate to obtain a contemporaneous examination in order to ascertain the current severity of this disability. VA has a duty to assist Veterans to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 § C.F.R. § 3.159 (2017). This duty to assist includes providing a thorough and contemporaneous medical examination. See Green, 1 Vet. App. at 124. In this regard, VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated or when the available evidence is too old to adequately evaluate the current state of the condition. See Olson, 3 Vet. App. at 482. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2017); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal since January 2016. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Thereafter, the AOJ should then review and consider the newly obtained VA outpatient treatment records as well as the January 2016 VA examinations for the Veteran’s bilateral hearing loss, tinnitus, PTSD, GERD, bronchial asthma, erectile dysfunction, and bilateral lower extremity radiculopathy and the June 2016 VA examination for the Veteran’s lumbar spine, as they relate to the Veteran’s claims in the first instance. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature, severity, and extent of his current pathology associated with his service-connected lumbar spine. The record, to include a copy of the claims file, should be made available to the examiner. Any required testing should be performed and recorded. The examiner should conduct range of motion testing of the lumbar spine (expressed in degrees) in active motion, passive motion, weight-bearing and nonweight-bearing. The examiner should note the point at which pain begins in the range of motion. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the lumbar spine due to pain and/or any of the other symptoms noted above during repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also describe the functional limitations resulting from the lumbar spine, to include during flare-ups. If flare-ups are not shown during the examination, the examiner should conduct efforts to obtain adequate information regarding the impairment resulting from flare-ups by alternative means, to include statements as to any such impairment by the Veteran himself. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] A complete rationale for any opinions rendered must be provided. 4. Schedule the Veteran for a VA examination to determine the nature, severity, and extent of his current pathology associated with his service-connected GERD. The record, to include a copy of the claims file, should be made available to the examiner. Any required testing should be performed and recorded. 5. Schedule the Veteran for a VA examination to determine the nature, severity, and extent of his current pathology associated with his service-connected bronchial asthma. The record, to include a copy of the claims file, should be made available to the examiner. Any required testing should be performed and recorded. 6. Schedule the Veteran for a VA examination to determine the nature, severity, and extent of his current pathology associated with his service-connected bilateral lower extremity radiculopathy. The record, to include a copy of the claims file, should be made available to the examiner. Any required testing should be performed and recorded. 7. Schedule the Veteran for a VA examination to determine the nature, severity, and extent of his current pathology associated with his service-connected peripheral chorioretinal scar left eye with vitreous floaters. The record, to include a copy of the claims file, should be made available to the examiner. Any required testing should be performed and recorded. 8. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dodd, Counsel