Citation Nr: 18154677
Decision Date: 11/30/18	Archive Date: 11/30/18

DOCKET NO. 16-24 583
DATE:	November 30, 2018
ORDER
Service connection for a hip disorder is denied.
A compensable rating for xerostomia (claimed as dry mouth) is denied.
REMANDED
Service connection for a lumbar spine disorder (claimed as low back condition), as secondary to the service-connected right foot fracture, is remanded.
Service connection for a left foot disorder is remanded.
A rating in excess of 10 percent for service-connected right foot fracture is remanded.
A rating in excess of 70 percent for service-connected generalized anxiety disorder with major depressive disorder is remanded.
Entitlement to an earlier effective date for service-connected right foot fracture is remanded.
Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a hip disorder.
2. The Veteran’s xerostomia has not resulted in complete loss of sense of taste. 
CONCLUSIONS OF LAW
1. The criteria for service connection for a hip disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 
2. The criteria for an initial compensable rating for xerostomia have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.87a, Diagnostic Code 9400-6276.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 2004 to June 2005. 
Service Connection
1. Hip disorder
The Veteran filed an informal claim in April 2013, contending that he had problems with his hips. 
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 a hip disorder 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 Board acknowledges that January 2012 VA medical records indicated that the Veteran complained of right hip pain. It was found that the Veteran’s x-rays were normal and that is right hip pain was possibly due to tendinitis and not a joint problem. Also, a November 2012 VA medical treatment note indicated that the Veteran complained of left hip pain. The note does not provide a diagnosis for a left hip disorder. Furthermore, the Veteran’s service treatment records are silent for complaints, treatment, or diagnoses of a hip disorder during active duty.
A claim for service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The claim must be accompanied by evidence demonstrating the presence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romansky v. Shinseki, 26 Vet. App. 289 (2013) (regarding existence of a current disability in relation to filing of a claim).
Private and VA medical records, associated with the claims file, suggest no diagnosis of a hip disorder during the pendency of the appeal. While the aforementioned VA treatment records from 2012 indicated isolated complaints of hip pain, these records do not support continued complaints by the Veteran of hip problems or a diagnosis shortly prior to the claim being filed or during the pendency of the claim. As there is no evidence of a disability at any point during the claims period or shortly prior to the claim being filed, the first element for establishing service connection is not met and the claim fails on that basis. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  The evidence does not indicate that the pain results in a functional loss disability.  Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018).
The Veteran is not competent to provide a diagnosis or medical nexus opinion in this case as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to a medical diagnosis. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinions do not constitute competent medical evidence and lacks probative value. This is especially true when weighed against VA treatment records which show no objective findings of hip problems during the appeal. 
Moreover, as there is no indication of a hip disorder, the threshold in McLendon has not been met. While McLendon establishes a low threshold, the holding makes abundantly clear that there is a threshold that must be met. With no indication of a currently diagnosed disorder, the Board finds that the Veteran’s lay contentions alone are insufficient to warrant a VA examination in this case. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994).
In sum, the Board finds that the weight of evidence is against the claim. As the preponderance of the evidence is against the claim of service connection for a hip disorder, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Increased Rating
2. Xerostomia 
The Veteran seeks a compensable rating for his xerostomia or dry mouth.
Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.
The Veteran has a noncompensable rating for xerostomia under Diagnostic Code 9400-6276. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Xerostomia is not listed in the rating schedule, and thus has been rated by analogy under Diagnostic Code 6267, while Diagnostic Code 9400 reflects its relationship to the Veteran’s service-connected generalized anxiety disorder with major depressive disorder. Under Diagnostic Code 6276, only a 10 percent rating is available when there is a complete loss of sense of taste.
The evidence of record, including the November 2012 VA dental and oral conditions examination, fails to show that the Veteran has complete loss of taste. Additionally, the November 2012 VA examination reported that the Veteran’s xerostomia had no impact on his ability to work. As a compensable rating under the applicable diagnostic code contemplates a complete loss of taste, which has not been shown or reported, there exists no basis for a compensable rating for xerostomia. To the extent that the Veteran argues his symptomatology is more severe than that shown at the VA examination, his statements must be weighed against the other evidence of record, and the specific examination findings of a trained health care professional is of greater probative weight than his lay assertions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). 
Neither the Veteran nor his attorney-representative have provided any specific contentions regarding a basis for a compensable rating for his service-connected xerostomia. Notably, a May 2012 VA mental health outpatient note reported that the Veteran presented to the clinic requesting documentation in his record that one of the side effects of Suboxone was dry mouth, so that he could be seen by the dental clinic for cavities which he believed were caused by dry mouth. There is no indication in the record regarding the extent of cavities due to his dry mouth. The Board has considered whether other diagnostic codes are applicable to the Veteran’s xerostomia, but no other codes apply. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”). Even assuming arguendo that there was documentation of cavities caused by the Veteran’s service-connected xerostomia, as a general matter periodontal disease with tooth loss may not serve as a basis for VA compensation. See 38 C.F.R. §§ 3.381, 4.150, 17.161 (periodontal disease with tooth loss cannot be service-connected for VA compensation purposes). Rather such dental maladies are to be considered service-connected solely for the purpose of entitlement to VA dental examination or outpatient dental treatment. 38 C.F.R. § 3.381. Therefore, there is not a legal basis to award compensation for the existence of cavities as there is a prohibition on the receipt of monetary compensation for periodontal disease under the VA benefits system. 
In sum, the Board finds that the preponderance of the evidence is against a compensable rating, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
REASONS FOR REMAND
3. Service connection: Lumbar spine disorder
The Veteran contends that he has a low back condition that is secondary to his service-connected right foot fracture. The Veteran underwent a VA spine examination in October 2012. The VA examiner concluded that the Veteran had a diagnosis of lumbar spine myofascial strain syndrome. While this opinion is sufficient to address the issue of causation, it is not sufficient to address the issue of aggravation because the examiner failed to provide an aggravation opinion. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Accordingly, a remand is necessary for a medical opinion to be obtained that addresses the issue of whether the Veteran’s lumbar spine disorder was aggravated by his service-connected right foot fracture. 
4. Service connection: Left foot disorder
5. Increase rating: Right foot fracture
The Veteran filed an informal claim for “feet problems.” His right foot is already service-connected for residuals of a fracture. 
In October 2013 and January 2016 VA foot examinations were scheduled. The Veteran failed to report to these examinations. Neither the Veteran nor his attorney-representative provided an explanation as to the Veteran’s failure to report to these examinations. Notably, in an October 2014 notice of disagreement, the attorney-representative requested that a VA foot examination be rescheduled, but provided no explanation as to why the Veteran failed to report to the October 2013 VA examination as required under 38 C.F.R. § 3.655. The AOJ rescheduled the examination for January 2016 and the Veteran again failed to report. 
Based on the Board’s review of the record, the Veteran was likely incarcerated during the latter half of this appeal. VA veterans’ justice outreach notes provided that the Veteran was transferred from county jail to the state correctional facility for incarceration in June 2015, and had a projected release date for June 2019 with eligibility of parole in January 2016. A March 2016 VA social work note indicated that a VA social worker met with the Veteran at the state correctional facility where he was currently incarcerated. The social worker, among other things, discussed with the Veteran his possibility for release later that year. By June 2018, the Veteran had submitted correspondence to VA from a private address. Given this sequence of events, it is more likely than not that the Veteran was incarcerated at the time of the last scheduled VA foot examination in January 2016 but it appears he is not currently incarcerated. There is no indication that VA made an attempt to schedule this examination with the state correctional facility. The VA examination request further indicates that VA had a different address on file, than the address where the VA social worker was sending mail to the Veteran at the state correctional facility. 
Notwithstanding this, the Board notes that under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. Pertinent to these claims, 38 C.F.R. § 3.655(b) applies to original service connection and non-initial increase rating claims. As to an original service connection claim, when a claimant fails to report for a VA examination without good cause, the claim shall be rated based on the evidence of record; and for a non-initial increased rating claim failure to show to the examination without good cause will result in a denial. See 38 C.F.R. § 3.655(b). 
Based on the foregoing, the Board finds that a remand is necessary to provide the Veteran with another opportunity to attend a VA foot examination as VA has not satisfactorily fulfilled its duty to assist the Veteran during its scheduling of the January 2016 examination.
6. Increase rating: Generalized anxiety disorder with major depressive disorder
The Veteran seeks a higher rating for his generalized anxiety disorder. The Veteran’s generalized anxiety disorder is rated under Diagnostic Code 9400 as 70 percent disabling. Diagnostic Code 9400 provides that a 100 percent rating is warranted for total occupational and social impairment. See 38 C.F.R. § 4.130. The Veteran’s most recent VA psychological examination was in October 2012. Thereafter, the Veteran’s attorney-representative submitted a September 2014 private vocational opinion by Dr. SB reflecting that the Veteran’s psychiatric symptoms, along with his other service-connected disabilities, were productive of unemployability. Further noteworthy are January 2015 VA mental health notes, which report that while incarcerated in 2015 the Veteran had expressed daily thoughts of killing himself. 
Given the age of the last VA psychological examination, a potential change in symptom manifestation in 2015, and that the rating criteria for psychiatric disabilities contemplate, in part, occupational functioning based on the severity, frequency, or duration of psychiatric symptoms (which in turn could have a bearing on the remanded Rice TDIU claim), a new examination should be performed to assess the severity of the Veteran’s generalized anxiety disorder with major depressive disorder. 
7. Earlier effective date: Right foot fracture
Regarding the claim of entitlement to an earlier effective date for the service-connected right foot fracture, the Veteran submitted a timely notice of disagreement with a November 2013 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
8. TDIU
A request for TDIU can be reasonably inferred from the record. In a July 2017 brief, the attorney- representative argued that the September 2014 private vocational opinion by Dr. SB indicated that the Veteran was precluded from substantially gainful employment due to the severity of his service-connected general anxiety disorder with major depressive disorder, right foot fracture, and xerostomia. This was raised in relation to the increased rating claims in appellate status. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 
A remand is required prior to adjudication of the claim for TDIU. The Veteran has not been provided adequate notice under the duty to notify requirements of the VCAA of the requirements to substantiate TDIU, nor has the AOJ addressed TDIU in the first instance. The severity of the Veteran’s service-connected disabilities, his employment history, his education and training, and all other factors having a bearing on the matter must be developed and considered prior to the Board’s adjudication of this issue.
The matter is REMANDED for the following action:
1. Obtain updated VA treatment records. 
2. After the completion of No. 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disorder. The examiner must opine whether it is at least as likely as not (1) proximately due to the service-connected right foot fracture, and (2) aggravated beyond its natural progression by the service-connected right foot fracture.
3. After the completion of No. 1, schedule the Veteran for a VA foot examination by an appropriate clinician.
(a.) The clinician is to determine the nature and etiology of any diagnosable foot disorder, which is not yet service-connected. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease.  
(b.) The clinician is also to determine the current severity of the Veteran’s service-connected right foot fracture. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria (e.g., moderate, moderately severe, or severe). The examiner must 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 the right foot fracture alone and discuss the effect of the Veteran’s right foot fracture 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).
(c.) When scheduling the aforementioned VA foot examination, notify the Veteran and his attorney-representative that it is the Veteran’s responsibility to report for the examination and to cooperate in the development of his claim, and that the consequences for failure to report for any VA examination without good cause may include denial of the claim under the governing regulation. A copy of the notification letter advising the Veteran and his attorney-representative of the time, date, and location of the scheduled examination must be included in the claims file and must reflect that it was sent to his last known address of record. 
(d.) If the Veteran fails to report to the VA foot examination, the claims file must include any notice informing the AOJ that he failed to report for the scheduled examination.
4. After the completion of No. 1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected generalized anxiety disorder with major depressive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to generalized anxiety disorder with major depressive disorder alone.
5. Issue a VCAA notice letter to the Veteran concerning a claim for TDIU. Additionally, ask him to fully complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The AOJ should then review the record and adjudicate the issue of entitlement to TDIU following the completion of Nos. 1 through 4.
 
6. Send the Veteran and his attorney-representative a statement of the case that addresses the issue of entitlement to an earlier effective date for the service-connected right foot fracture. 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.
 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Dellarco, Associate Counsel