Citation Nr: 18152678 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 15-23 150A DATE: November 23, 2018 ORDER Entitlement to service connection for residuals of a gunshot wound to the right ear is denied. Entitlement to service connection for a skin disability of the arms and legs is denied. Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD), prior to February 27, 2015, is denied. REMANDED Entitlement to service connection for numbness and pain, left knee, is remanded. Entitlement to service connection for numbness and pain, right knee, is remanded. Entitlement to service connection for bilateral foot disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for numbness in the arms and fingers (peripheral neuropathy of upper extremities) is remanded. Entitlement to service connection for numbness in the legs (peripheral neuropathy of lower extremities) is remanded. Entitlement to service connection for diabetes with kidney disease is remanded. Entitlement to service connection for stroke is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has residuals of a gunshot wound to the right ear which is related to service. 2. The preponderance of the evidence is against finding that the Veteran’s current skin disability, diagnosed as seborrheic keratosis, an epidermoid cyst on the right ear, onychomycosis of the toes, and eczematous dermatitis, is related to service. 3. Prior to February 27, 2015, the Veteran’s PTSD had not been productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a gunshot wound to the right ear are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a skin disability of the arms and legs are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for an initial evaluation in excess of 70 percent for PTSD, prior to February 27, 2015, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes there are additional issues on appeal that the Veteran has perfected, but are not yet ripe for Board review. When an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). As the required notifications have not been sent in regard to the Veteran’s claims of entitlement increased evaluations for degenerative lumbar spine with spondylosis and scoliosis, bilateral hearing loss, and tinnitus; and entitlement to an effective date prior to November 8, 2011, for the award of service connection for degenerative lumbar spine with spondylosis and scoliosis, the Board declines to take any further action on these issues at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). Thus, these issues will be the subject of a later Board decision as appropriate. The Board notes that the claims for service connection for diabetes and stroke are intertwined with the issues currently before the Board, and will be addressed below. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Entitlement to service connection for residuals of a gunshot wound to the right ear. In July 2009, the Veteran filed his present claim seeking service connection for a scar on the right ear as a result of an in-service gunshot wound from a sniper attack in March 1968. 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, while VA records beginning in September 2008 reference a bullet wound to the right ear with missing tissue, the preponderance of the evidence is against finding that this disability began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records is completely silent as to any injury to his right ear during service. His separation examination, performed in December 1968, noted that his ears and skin were normal. On a medical history report, completed pursuant to his separation examination in December 1968, the Veteran denied having any ear problems. He also reported having stitches for a cut above his left ear prior to his military service in 1965. While the Veteran is competent to report that he was shot in his right ear during service, the Board finds his contention lack credibility. There is no reference to this incident during his military service or for more than 35 years thereafter. The December 1968 separation examination listed his ears as normal. The Veteran also denied having any problems with his ears on a medical history report completed at that time. The Board finds the evidence contemporaneous to service to be more probative than reports from the Veteran made 35 years after service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In sum, the preponderance of the competent and probative evidence is against a finding that the Veteran suffered from a gunshot wound to the right ear in service. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for a skin disability of the arms and legs. The Veteran contends that he developed a severe skin rash of the legs and arms as result of his military service, including in-service exposure to Agent Orange. 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, while the Veteran has current diagnoses of seborrheic keratosis, an epidermoid cyst on the right ear, onychomycosis of the toes, and eczematous dermatitis, the preponderance of the evidence weighs against finding that any of these current skin disabilities began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran served in the Republic of Vietnam from June 1967 to June 1968. A review of his service treatment records was silent as to any dermatological complaints or abnormalities. His separation examination, performed in December 1968, noted that his skin was normal. On a medical history report, completed pursuant to his separation examination in December 1968, the Veteran denied having any skin problems. Post service treatment reports are silent as to any complaints of or treatment for a skin disability until November 2007, over 39 years after the Veteran’s separation from military service. Moreover, none of the Veteran’s current skin disabilities is entitled to a presumption of service connection based upon his in-service exposure to Agent Orange. See 38 C.F.R. § 3.307, 3.309. While the Veteran contends that his skin condition began in service, the Board gives more probative weight to the contemporaneous service records which do not reflect any skin disability and the Veteran’s own report denying a skin disability on the report of medical history contemporaneous to the Veteran’s discharge from military service. In sum, the preponderance of the evidence is against the claim, and service connection for a skin condition is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55. 3. Entitlement to an initial evaluation in excess of 70 percent for PTSD, prior to February 27, 2015. The Veteran is seeking an increased initial evaluation for his service-connected PTSD, prior to February 27, 2015. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximate the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The RO has assigned the Veteran’s PTSD an initial evaluation of 70 percent effective July 23, 2009, followed by an evaluation of 100 percent, effective February 27, 2015, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the governing regulatory rating criteria, PTSD is rated under a “General Rating Formula for Mental Disorders”. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this Formula, a 70 percent evaluation contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation, is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). Based upon a longitudinal review of the Veteran’s claims file, the Board concludes that the preponderance of the evidence of record does not support the assignment of an initial rating in excess of 70 percent for PTSD at any time prior to February 27, 2015. VA treatment records noted that he was anxious, has panic attacks, hypervigilance, suicidal thoughts, avoidance, depression, auditory hallucinations, severe insomnia, memory issues, and lacks friendships and social interactions. The Veteran also reported complaints of worsening nightmares, flashbacks, inability to ambulate, and that he quit his job due to severe pain. An April 2010 VA psychiatric examination listed a diagnosis of PTSD. The report noted the Veteran’s problems with sleeping, nightmares, recurrent recollections, irritability, anger, low tolerance, short fuse, exaggerated startle response, few friends, and no difficulty performing his activities of daily living. An October 2012 examination for PTSD noted the Veteran’s symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The report indicated that he was living with his spouse and 41-year-old son, and that his relationship with his immediate family was fair. The report indicated that he had last worked as a security guard in 2009, and that he had worked in this type of position for the past 35 years. The VA examiner concluded that the Veteran’s PTSD, as a whole, was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A May 2017 vocational evaluation report concluded with an opinion that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected PTSD, and that the record supports this finding as far back as the date of filing. Considering the above, the Board concludes that the evidence does not reflect symptomatology consistent with total occupational and social impairment at any point prior to February 27, 2015. In reaching this decision, the Board finds the Veteran’s VA treatment records and examinations conducted prior to February 2015 to be the more probative evidence as to the severity of his PTSD at that time than the vocational opinion rendered after that time. Accordingly, an initial rating in excess of 70 percent is not warranted at any time prior to February 27, 2015. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for diabetes with kidney disease is remanded. The Board notes that the claim for service connection for diabetes was denied because the Veteran had impaired glucose tolerance but did not have diabetes. A medical report received recently notes the Veteran has a history of diabetes. The Board finds a current VA examination is needed. Updated treatment records should also be requested for all remanded issues. 2. Entitlement to service connection for numbness and pain, left knee, is remanded. 3. Entitlement to service connection for numbness and pain, right knee, is remanded. The Veteran contends that both of his knees were injured by an exploding enemy rocket on February 5, 1968. An in-service treatment report, dated February 5, 1968, noted treatment for a left knee laceration. A service certificate, dated February 6, 1968, noted that the Veteran’s unit had come under enemy rocket attack the day before. Post service treatment reports reference the Veteran’s complaints of bilateral knee pain. The Board concludes that a VA examination would aid in adjudicating the claim. 4. Entitlement to service connection for bilateral foot disability is remanded. 5. Entitlement to service connection for stroke is remanded. 6. Entitlement to service connection for hypertension is remanded. 7. Entitlement to service connection for numbness in the arms and fingers (peripheral neuropathy of upper extremities) is remanded. 8. Entitlement to service connection for numbness in the legs (peripheral neuropathy of lower extremities) is remanded. Because a decision on the issue of entitlement to service connection for diabetes mellitus with kidney disease could significantly impact a decision on the issues of service connection for a bilateral foot disability, stroke, hypertension, and numbness in the upper and lower extremities, these issues must also be remanded as intertwined with the diabetes issue. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his feet, knees, stroke, hypertension, diabetes, kidneys, and numbness in the extremities. After securing the necessary release, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are not available, the Veteran should be notified of such. 2. Schedule the Veteran for a VA diabetes examination to determine whether the Veteran meets the diagnostic criteria for the disease. The claims file must be reviewed in conjunction with the examination. All indicated tests must be conducted and the results reported. If the Veteran does not meet the diagnostic criteria for diabetes, the examiner should explain why. 3. Schedule the Veteran for a VA knee examination. The claims file must be reviewed in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner must opine whether it at least as likely as not (50 percent probability or greater) that any identified right and left knee disability, to include arthritis, is related to service, to include as a result of an exploding enemy rocket causing him to fall on his knees in February 1968. The examiner should explain why his current knee disability is not merely a post-traumatic response to that event. 4. After the above development and any additionally indicated development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues. If the benefits sought remain denied, issue a Supplemental Statement of the Case and provide an opportunity to respond before the case is returned to the Board. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Yates