Citation Nr: 18150650 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-11 894 DATE: November 15, 2018 ORDER Entitlement to service connection for an atrioventricular block is denied. Entitlement to an effective date earlier than May 3, 2012, for the grant of service connection for a left ankle sprain is denied. REMANDED Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for benign neoplasms is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to an initial rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to non-service connected pension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an atrioventricular block. 2. The Veteran’s claim for service connection for a left ankle sprain was received by VA on May 3, 2012; there is no earlier correspondence in the record that may be construed as a formal or informal claim for that disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an atrioventricular block are not met. 38 U.S.C. §§ 1110, 1111, 113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for an effective date earlier than May 3, 2012, for the grant of service connection for a left ankle sprain have not been met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from October 1986 to October 1990. The Veteran testified at a May 2018 video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to service connection for an atrioventricular block. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In his May 2012 VA Form 21-526, Application for Compensation and/or Pension, the Veteran requested service connection for an atrioventricular block contending that this disability had its onset in February 1989, while he was in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of atrioventricular block and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The competent (medical) evidence of record does not reflect a current diagnosis of atrioventricular block. While private treatment records from August 2005 reflect that the Veteran has been assessed as having mild mitral valve prolapse, the record, including the Veteran’s service treatment records, is silent with respect to an atrioventricular block. Although the Veteran may believe he has a current diagnosis of an atrioventricular block, he (as a layperson) is not competent to provide a diagnosis in this case. An atrioventricular block is not an observable disability and requires medical knowledge to diagnose. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence in this case. Entitlement to an earlier effective date for the award of service connection for a left ankle disability. The Veteran has been awarded service connection for a left ankle disability, effective from May 3, 2012. In his March 2015 Notice of Disagreement, the Veteran alleged he was entitled to an earlier effective date for that award. However, no argument supporting this contention has been proffered by the Veteran or his agent. The Board has carefully reviewed all documents in the Veteran’s claims file and finds there is no evidentiary basis for the assignment of an earlier effective date. The controlling law and regulations regarding effective dates are clear. The effective date of an award of compensation based on an original claim (received beyond one year after separation from service), will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). In this case, the Veteran’s claim for service connection for a left ankle sprain was received by VA on May 3, 2012. There is no earlier correspondence in the claims file that may be construed as either a notice of intent to file a claim, an informal claim, or a formal claim for entitlement to service connection for a left ankle disability. Significantly, neither the Veteran nor his agent has identified any such correspondence in support of the claim for an earlier effective date. Accordingly, the Board finds that the effective date for the Veteran’s left ankle disability was properly assigned as of the date of claim, and the claim for an earlier effective date is denied. REASONS FOR REMAND Entitlement to service connection for an eye disability and for benign neoplasms are remanded. The record reflects the Veteran had complaints regarding irritation of both of his eyes while in service. In February 1990, he reported feeling pressure in his left eye. The Veteran underwent a VA eye conditions examination in May 2014, which indicated diagnoses of myopia and pseudopapilledema. The May 2014 examiner indicated the Veteran had an associated benign neoplasm that was treated by surgery in 2009, but he did not have any residual conditions or complications because of the neoplasm. She concluded the Veteran had normal vision and no visual field loss as a result of the orbital/sinus cyst on the left side; however, she could not render an opinion as to whether the cyst was a result of treatment in service. An August 2014 opinion rendered by a different VA optometrist indicated the Veteran’s eye condition was less likely than not caused by or related to the in-service treatment. She indicated the episodes of conjunctivitis were recurrent but self-limiting and were not noted to have occurred in several years and that records from February 1990 were not treatment for eyes but for sinusitis that was causing eye pressure. She explained that any opinion regarding the sinusitis should be answered by an ear nose and throat (ENT) specialist. The Veteran testified at the May 2018 Board hearing that he began having issues related to his sinuses, eyes, and conjunctiva around 1989. He noticed a painful cyst in the corner of his eye at that time and experienced headaches. His eyes would turn red, particularly the left eye. He took pain medication and sought treatment from the Birmingham VA in 1992, at which time it was suggested the cyst would go away on its own. He explained that the pain had become more intense and eventually his eye started to bulge out. He underwent surgery in 2009 to remove the cyst. He stated that in 2011 he started having seizures and other complications, including emotional problems. The Veteran clarified that rather than a disability of the eye, he was seeking service connection for a cyst near the eye area that he believed had its onset in service. In support of his claim, in September 2018, the Veteran submitted a private medical opinion (dated in August 2018) from a physician who had previously treated the Veteran while he was an attending physician at the VA Hospital Eye Clinic in Gainesville, Florida. The private physician stated that after reviewing the Veteran’s medical history, it was “plausible” the Veteran’s left orbital ethmoid cyst was present and manifested during his active duty service, but recommended that the Veteran be provided further evaluation. In light of the foregoing evidence, the Board finds that remand is necessary to obtain additional examinations, including a neurological examination and an ear nose and throat examination, to properly assess the nature of the Veteran’s claimed disability and its etiology. Considering the possibly intertwined nature of the Veteran’s eye condition with the benign neoplasm, remand of the benign neoplasm issue is also necessary. Entitlement to service connection for right ankle disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for the Veteran’s right ankle disability because clarification is needed regarding the VA examiner’s opinion. In May 2013, a VA examiner diagnosed a left ankle sprain, but made no diagnosis regarding the right ankle. The examiner opined that the claimed condition was at least as likely as not incurred in of caused by the claimed in-service injury, event, or illness. As a rationale, he noted the Veteran had a string of left ankle sprains in 1987 with multiple visits and two orthopedic referrals with physical therapy and casting treatments. The examiner further noted there was no evdience of any right ankle disorder found in the service treatment records. While the VA examiner found no right ankle disability at the time of the May 2013 examination, VA treatment records from May 2011 reflect the Veteran was assessed as having a right ankle sprain. Accordingly, an addendum opinion is needed to clarify whether the Veteran has had a right ankle disability at any time during the appeal period and, if so, whether it is at least as likely as not related to his military service. Entitlement to an initial rating in excess of 10 percent for left ankle disability is remanded. The United States Court of Appeals for Veterans Claims (Court) found the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Upon review of the May 2013 VA examination and opinion, it does not appear that such testing was conducted, or that the VA examiner explained why such testing could not be conducted or was not necessary. Entitlement to a TDIU based on service-connected disabilities is remanded. The consideration of entitlement to a TDIU is dependent upon the impact of the Veteran’s service-connected disabilities on his ability to obtain or retain substantially gainful employment. Considering a favorable decision with regard to the issues remanded above may have an impact on the TDIU rating claim, such issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Entitlement to non service-connected pension is remanded Further development is necessary to determine the Veteran’s eligibility for a non service-connected pension, to include scheduling him for a current VA general medical examination. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by appropriate clinicians, including an ear nose and throat specialist and a neurologist, to determine the nature and etiology of any eye disability, sinus disability, benign neoplasm disability, or related neurological disability, to include a cyst near the eye area (left orbital ethmoid cyst). The examiner must opine whether any such disability is at least as likely as not related to an in-service injury, event, or disease. The claims file must be made available to the examiners in connection with the examinations. The examiners should identify all examination findings, as well as provide complete rationales for any opinions given. All pertinent evidence, including both lay and medical, should be considered. The Veteran’s statements provided at the time of his May 2018 Board hearing and the August 2018 private medical opinion should be considered. 2. Schedule the Veteran for an appropriate examination to determine the nature and current severity of his left ankle disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to left ankle disability alone and discuss the effect of the Veteran’s left ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has had a right ankle disability at any time during the period on appeal, and, if so, whether any such disability is at least as likely as not related to an in-service injury, event, or disease. 4. After completion of the above, schedule the Veteran for an appropriate VA general medical examination for pension purposes to determine the nature, extent, and severity of all non service-connected disabilities present, to include a determination as to whether those disabilities are permanent in nature. The examiner should identify the level of functional impairment associated with all such disabilities shown, and indicate whether they are permanent in nature, and if so, constitute sufficient impairment of mind or body to render it impossible for the average person to follow a substantially gainful occupation, and/or render the Veteran incapable of substantially gainful employment. The claims file must be made available to the examiner in connection with the examination. The examiner should identify all examination findings, as well as provide a complete rationale for any opinions given. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.Vemulapalli, Associate Counsel