Citation Nr: 18149456 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-19 525A DATE: November 9, 2018 ORDER Entitlement to service connection for obesity is denied. Entitlement to an evaluation in excess of 10 percent for a left inguinal hernia is denied. REMANDED Whether new and material evidence has been received to reopen a claim for service connection for a low back disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a disability of the lung is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Whether new and material evidence has been submitted to reopen a claim for service connection for a heart disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for essential tremors is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for restless leg syndrome is remanded. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss is remanded. Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. Whether new and material evidence has been received to reopen a claim for service connection for a neurological disability of the lower extremities is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to an effective date earlier than March 13, 1993, for the award of a 10 percent evaluation for a left inguinal hernia is remanded. FINDINGS OF FACT 1. Obesity is not a disease or disability for which service connection may be established. 2. The Veteran’s left inguinal hernia has not been manifested by a recurrent readily reducible postoperative hernia that is well supported by truss or belt and has not been manifested by a hernia (either postoperative or inoperable) which is not well supported by truss, not readily reducible, or not well supported under ordinary conditions. CONCLUSIONS OF LAW 1. Entitlement to service connection for obesity is denied as a matter of law. 38 C.F.R. §§ 1110, 1131; VAOPGCPREC 1-2017. 2. The criteria for entitlement to an evaluation in excess of 10 percent for a left inguinal hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code (DC or Code) 7338. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from June 1984 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) in November 2013 and December 2014. REFERRED The issue of entitlement to service connection for Charcot foot was raised in the Veteran’s April 2013 claim for benefits and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate development and adjudication. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for obesity Obesity is an increase in body weight beyond the limitation of skeletal and physical requirement, as a result of an excessive accumulation of fat in the body. See Dorland’s Illustrated Medical Dictionary 1329 (31st ed. 2007). The Veteran’s claim for service connection for obesity originates from his July 2014 fully developed claim. In January 2017, VA’s Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a “disease” for the purposes of service connection under U.S.C. § 1110; and, whether obesity may be considered a disability for purposes of secondary service connection, whether it may be treated as an in-service “event” from which a service-connected disability may result, and whether it may be an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. While the Board is not adjudicating the question of whether obesity has acted as an intermediate step between a service connected disability and an additional disability that may be service-connected on a secondary basis, the issue of direct service connection for obesity has been properly certified to the Board. Due to VA’s OGC precedential conclusion that obesity is not a disease or injury for VA compensation purposes, the Board is prohibited as a matter of law from granting the Veteran’s claim for direct service connection for this condition. See VAOPGCPREC 1-2017. Accordingly, his claim must be denied Increased Evaluation Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. 2. Entitlement to an evaluation in excess of 10 percent for a left inguinal hernia The Veteran’s hernia has been evaluated pursuant to Diagnostic Code 7338 for the entire period on appeal. This Code assigns a noncompensable evaluation when the hernia is small, reducible, or without true hernia protrusions or when the hernia has not been operated upon but is remediable. 38 C.F.R. § 4.114. A 10 percent evaluation is assigned when the hernia is recurrent postoperatively, but is readily reducible and well supported by truss or belt. Id. An evaluation of 30 percent is warranted when there is a small, recurrent postoperative inguinal hernia or an unoperated but irremediable hernia that is not well supported by a truss, or not readily reducible. Id. The highest evaluation of 60 percent under this DC is assigned when the hernia is recurrent, large, and postoperative and is not well supported under ordinary conditions and not readily reducible, or when the large, recurrent hernia is considered inoperable. Id. Although the Veteran seeks an increase in his current 10 percent evaluation for his left inguinal hernia, the record does not contain any significant or ongoing reports of any hernia-related symptoms either in treatment records or in statements made throughout the appellate process. Nonetheless, the Veteran was afforded a VA medical examination in connection with his claim in October 2013. Notably, the physician who evaluated the Veteran at that time stated that the Veteran had explicitly denied experiencing recurrent hernia since a second hernia operation and mesh placement was conducted at a private facility in 1997, although the Veteran did report occasional pain at the operative site. The examiner also confirmed that recent VA treatment notes failed to include any evidence that the Veteran had any recurrence of a hernia despite a small area of numbness associated with his surgical site. Upon examination, the evaluating physician reported that the Veteran had no detectable hernia on either side and had no indication for a supporting belt. The only abnormality reported was minimal tenderness to palpation in the area of the prior surgery. The only functional impact noted by the examiner from this hernia was that the Veteran should not be involved in heavy or repetitive lifting activities. Outside of this isolated report of tenderness to palpation and loss of sensation, the Board is unable to find any other evidence of significant or recurrent hernia-related symptoms. A review of the Veteran’s VA treatment records does not uncover any statement by either the Veteran or his examining clinicians that he experiences a recurrent postoperative small inguinal hernia on the left or that he has an unoperated irremediable hernia that is not well supported by a truss or not readily reducible. This evidence would appear to be more consistent with the criteria for a noncompensable evaluation, as set forth under DC 7338. While the Veteran is competent to report the observable symptoms of pain that he described at the October 2013 VA medical examination, it is notable that he has not suggested that the specific criteria for an evaluation in excess of 10 percent under DC 7388 have been met. As examining and treating clinicians have also failed to report any signs or symptoms consistent with an evaluation higher than 10 percent for a left inguinal hernia, the Board finds that the preponderance of the competent, probative, and credible evidence of record is against a finding that the criteria for a higher evaluation have been met. Accordingly, the Board finds that the Veteran’s claim must be denied and the doctrine of the benefit of the doubt is not for application. REASONS FOR REMAND 1. The issues of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back disability, peripheral neuropathy of the lower extremities, bilateral hearing loss, and a heart disability, and the issues of entitlement to service connection for tinnitus, a lung disability, obstructive sleep apnea, diabetes mellitus, essential tremors, restless leg syndrome, and carpal tunnel syndrome are remanded. In a statement received in August 2011, the Veteran informed VA that he was awarded disability benefits by the Social Security Administration (SSA) primarily due to his lower extremity symptoms and pain. At a private psychological evaluation in February 2017, he clarified that he was awarded those benefits in 2006. As the medical records underlying the ultimate award of those benefits contain potentially relevant evidence relating to the course and onset of the many disabilities for which the Veteran is currently seeking service connection, the Board finds that VA must make all reasonable efforts to obtain them before adjudicating the Veteran’s claims for service connection. The Board recognizes that it has adjudicated the Veteran’s claim for service connection for obesity and a higher evaluation for a hernia without the benefits of any SSA disability records. However, evidence from a 2006 disability determination would appear to include no significant probative or competent evidence regarding the Veteran’s hernia during the period currently on appeal. Similarly, as the Board has explained above, because obesity is not a disability subject to service connection per a precedential decision of VA’s OGC, any evidence of the presence of this condition in 2006 would not be relevant to the Veteran’s claim to connect that condition to service. 2. Entitlement to service connection for headaches is remanded. The Board finds that it must also remand the issue of entitlement to service connection for headaches to attempt to acquire outstanding SSA disability records. The claim must also be remanded to afford the Veteran the opportunity to attend a medical examination. In light of the in-service evidence of numerous complaints of headaches and the contention that the Veteran’s current headaches may represent a continuation of those in-service complaints, the Board finds that such an examination is warranted pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for an acquired psychiatric disability is remanded. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including a claimant’s description of the claim, the symptoms a claimant describes, and the information a claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the claims file includes diagnoses of a mood disorder and bipolar disorder, the Board has taken an expansive view of the Veteran’s claim in characterizing the acquired psychiatric disability claim, as noted above. As was the case with many of the other claims for service connection, the Board must remand the claim for an acquired psychiatric disability to obtain potentially relevant SSA disability records. Due to the lay statements submitted by the Veteran’s former spouse and sister in which they have provided competent statements of their observations in the change in the Veteran’s mood after service, the Board finds that the low threshold triggering the duty to provide a medical examination set forth in McLendon has been met. Upon remand, the Veteran should be provided the opportunity to attend a psychological examination. 4. Entitlement to an effective date earlier than March 13, 1993, for the award of a 10 percent evaluation for a left inguinal hernia is remanded In the July 2014 notice of disagreement in which the Veteran appealed the evaluation assigned to his left inguinal hernia, he also indicated that he disagreed with the effective date of the evaluation of that disability. The claims file does not include a Statement of the Case (SOC) with respect to this issue and it must be remanded for further adjudicative action. 38 C.F.R. 19.9 (c) (2017); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Despite being represented by counsel, the Veteran has made no specific contention as to why an earlier effective date is warranted. He is encouraged to do so should he continue his appeal following receipt of a Statement Of the Case. The matters are REMANDED for the following action: 1. Obtain the Veteran’s Federal records from the Social Security Administration relating to disability benefits. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for a psychiatric examination to obtain medical evidence as to the nature and etiology of any acquired psychiatric disability. The examiner must opine whether each diagnosed disability is at least as likely as not related to any in-service injury, event, or disease. 3. Schedule the Veteran for an examination by an appropriate clinician to obtain evidence as to the nature and etiology of any current headache disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the numerous complaints of headaches documented in the Veteran’s service treatment records. (Continued on the next page)   4. Send the Veteran and his representative a Statement Of the Case that addresses the issue of entitlement to an effective date earlier than March 13, 1993, for the award of a 10 percent evaluation for a left inguinal hernia. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel