Citation Nr: 18154790 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 13-06 354 DATE: December 4, 2018 ORDER Entitlement to service connection for loss of bone mass due to radiation exposure is denied. Entitlement to service connection for loss of muscle mass due to radiation exposure is denied. Entitlement to service connection for fatigue due to radiation exposure is denied. Entitlement to service connection for hair loss due to radiation exposure is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for blurred vision, to include as due to radiation exposure, is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for memory/cognitive loss is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for numbing and tingling of the bilateral hands, to include as due to radiation exposure, is remanded. Entitlement to a rating in excess of 10 percent for left knee strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. At no time during the pendency of this claim has the Veteran had a diagnosis of loss of bone mass; additionally, loss of bone mass is not a “radiogenic disease” as defined by applicable regulations and the Veteran has not cited or submitted competent scientific or medical evidence that this disability is associated with exposure to ionizing radiation. 2. At no time during the pendency of this claim has the Veteran had a diagnosis of loss of muscle mass; additionally, loss of muscle mass is not a “radiogenic disease” as defined by applicable regulations and the Veteran has not cited or submitted competent scientific or medical evidence that this disability is associated with exposure to ionizing radiation. 3. At no time during the pendency of this claim has the Veteran had a diagnosis of fatigue; additionally, fatigue is not a “radiogenic disease” as defined by applicable regulations and the Veteran has not cited or submitted competent scientific or medical evidence that this disability is associated with exposure to ionizing radiation. 4. At no time during the pendency of this claim has the Veteran had a diagnosis of hair loss; additionally, hair loss is not a “radiogenic disease” as defined by applicable regulations and the Veteran has not cited or submitted competent scientific or medical evidence that this disability is associated with exposure to ionizing radiation. Hair loss was not manifest in active service and is not otherwise etiologically related to such service. 5. At no time during the course of this appeal has the Veteran’s hearing acuity shown to have been worse than Level I in either ear. CONCLUSIONS OF LAW 1. The criteria for service connection for loss of bone mass are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.311. 2. The criteria for service connection for loss of muscle mass are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.311. 3. The criteria for service connection for fatigue are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.311. 4. The criteria for service connection for hair loss are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.311. 5. The criteria for a compensable rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. Part 4, §§ 4.85, 4.86, Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1984 to April 1988. These matters are before the Board of Veterans’ Appeals (Board) on appeal from July and September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. During the January 2016 Board hearing, the Veteran provided testimony regarding a previous claim for service connection for a bilateral ankle disability, which was denied in a September 2012 rating decision. As the Veteran did not appeal that decision, that issue is not before the Board. However, he is encouraged to file a claim seeking to reopen his claim of service connection if he so chooses. Additionally, in his October 2012 notice of disagreement, the Veteran confirmed that he wanted to file a claim of service connection for leg length discrepancy. As this matter has not yet been adjudicated, it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. 19.9(b); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). Service Connection Initially, the Board notes that it has reviewed all of the evidence in the Veteran’s record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Service connection may be established on a direct basis for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be a chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). It is VA’s defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for loss of bone mass due to radiation exposure. 2. Entitlement to service connection for loss of muscle mass due to radiation exposure. 3. Entitlement to service connection for fatigue due to radiation exposure. 4. Entitlement to service connection for hair loss due to radiation exposure. The Veteran claims that his loss of bone mass, loss of muscle mass, fatigue, and hair loss are due to radiation exposure in service. While the record contains service and VA treatment records, there is no evidence of current diagnoses of loss of bone mass, loss of muscle mass, fatigue, or hair loss. The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law, “[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit Court, which has stated, “a Veteran seeking disability benefits must establish... the existence of a disability [and] a connection between the Veteran’s service and the disability.” Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA’s and the Court’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). While the Veteran may be competent to report symptoms of loss of bone mass, loss of muscle mass, fatigue, and hair loss, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of these conditions. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, his lay assertions of medical diagnoses or etiology cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). The Board acknowledges the Veteran’s claims that such disabilities are due to radiation exposure in service. However, without a medical diagnosis of such disabilities, service connection cannot be granted. In arriving at the decision to deny these claims, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Additionally, even if the Board were to assume that he had current diagnoses of the disabilities on appeal, the Veteran has only alleged that such disabilities are due to radiation exposure in service (and not due to any other incident or event in service). However, none of his claimed disabilities are recognized as radiogenic diseases. Nor has he cited or submitted competent scientific or medical evidence that the claimed disabilities are radiogenic diseases. Therefore, development under 38 C.F.R. § 3.311 would not be required even if he had diagnoses of loss of muscle mass, loss of bone mass, fatigue, or hair loss. Accordingly, service connection for such disabilities is denied. 5. Entitlement to a compensable rating for bilateral hearing loss. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations for hearing acuity assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the claimant’s average hearing threshold. The average puretone threshold is derived from puretone audiometric testing in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the hearing acuity level. Table VIA is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist’s description of the functional effects of a veteran’s hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. Turning to the evidence of record, on August 2011 VA audiological evaluation, audiometry revealed that puretone thresholds, in decibels, were: 1000 2000 3000 4000 R 30 35 30 25 L 25 35 20 40 The average puretone thresholds was 30 decibels for the right ear and 30 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. While decreased hearing abilities were noted, hearing loss was not found to affect his daily activities. On May 2015 VA audiometric evaluation, audiometry revealed that puretone thresholds were: 1000 2000 3000 4000 R 25 25 20 25 L 20 20 15 25 The average puretone thresholds were 24 decibels in the right ear and 20 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in each ear. The examiner noted that the Veteran no longer had hearing loss for VA purposes; accordingly, no functional impact was noted. Based on the foregoing, a review of all the audiometry of record found none showing a hearing impairment warranting a compensable rating. Specifically, under Table VI, the August 2011 and May 2015 VA audiometry (each) found Level I hearing in each ear. No examination found an exceptional pattern of hearing loss, as defined in 38 C.F.R. § 4.86 (so as to warrant rating under the alternate criteria in Table VIA). Accordingly, no audiometry during the period under consideration shows a hearing loss disability warranting a compensable rating under the schedular criteria for rating hearing loss. Hearing loss is expressly contemplated by the rating schedule, which evaluates puretone threshold average and speech discrimination. 38 C.F.R. § 4.85, Code 6100. Although the Veteran challenges the adequacy of the audiological evaluation, particularly it being conducted in a sound control room, the Court has found that a sound-controlled environment used to conduct audiometric examinations, like the one described by the Veteran, is an adequate testing environment for VA rating purposes. See Martinak, 21 Vet. App. at 453-454; Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Regarding the Veteran’s assertions that his hearing impairment is greater than reflected by the 0 percent rating assigned, the Board acknowledges he is competent to report the symptoms he experiences, including difficulty hearing. However, as a layperson, he is not competent to establish his level of hearing impairment by his own opinion. As noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to findings on controlled audiometry. In this case, that application results in a 0 percent rating being warranted. See Lendenmann, 3 Vet. App. at 349. More specifically, the results of the May 2015 VA examination show that the Veteran’s hearing is normal in both ears, which provides further evidence that he is not entitled to a compensable rating for bilateral hearing loss. Additionally, while the Veteran testified to “whistling” and vibration in his ear, the Board believes that these symptoms are contemplated by the 10 percent rating assigned for his service-connected tinnitus. Accordingly, a compensable rating for bilateral hearing loss is denied. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a bilateral hip disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a bilateral foot disability is remanded. The Veteran states that his low back, bilateral hip, right knee, and bilateral foot disabilities are related to service, or to his service-connected left knee disability. Although the Veteran’s right knee disability was examined in January 2012 and October 2014 in conjunction with his left knee, no satisfactory nexus opinion has been obtained. Additionally, the Veteran has not been afforded VA examinations in conjunction with his claims of service connection for low back and bilateral hip disabilities. Therefore, an examination to secure a medical opinion that addresses such theories of entitlement is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Additionally, although the Veteran has stated multiple times that he was hospitalized at the military base in Holloman, New Mexico (potentially in April to June of 1987), such hospital records have not been obtained. On remand, an effort should be made to obtain any related in-service hospital records regarding treatment for back, hip, legs, or feet, as hospital records are housed separately from STRs. 5. Entitlement to service connection for blurred vision is remanded. 6. Entitlement to service connection for migraines is remanded. 7. Entitlement to service connection for memory/cognitive loss is remanded. 8. Entitlement to service connection for a neck injury is remanded. 9. Entitlement to service connection for numbing and tingling of the bilateral hands due to radiation exposure is remanded. The Veteran states that his blurred vision, migraines, memory/cognitive loss, and neck injury are due to an incident in service. Specifically, in a January 2010 report of general information, he stated that he fell from a truck during service and suffers migraines, neck pain, and nerve pain as a result. During his January 2016 Board hearing, he testified that he was yanked out of a dump truck into the ground; he suffered migraines and memory/cognitive loss as a result of the incident. The Board finds that an examination to secure a medical opinion that addresses these claims is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board also notes that the Veteran has claimed that blurred vision and numbness and tingling of his bilateral hands is due to radiation exposure. Neither of these are listed as a “radiogenic disease” under 38 C.F.R. § 3.311(b)(2). Nevertheless, the procedures outlined in 38 C.F.R. § 3.311 can apply to other diseases if the Veteran has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. See 38 C.F.R. § 3.311(b)(4). To date, the Veteran has not produced a competent medical opinion or cited any scientific or medical evidence that either disability may be related to ionizing radiation exposure. As these matters are being remanded anyway, the Veteran is encouraged to submit any evidence in support of his claim. 10. Entitlement to a rating in excess of 10 percent for left knee strain is remanded. With respect to the Veteran’s increased rating claim for his left knee disability, 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. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, a review of the claims file reveals that the prior VA knee examinations do not fully comport with the requirements of Correia and therefore may be inadequate. Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. Accordingly, a new VA examination is necessary. 11. Entitlement to a TDIU rating is remanded. Because adjudication of the Veteran’s claims that are being remanded will likely impact adjudication of the Veteran’s TDIU claim, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Other Considerations The Board notes that several of these claims are being remanded so that the Veteran can be scheduled for VA examinations. It appears from the claims file that the Veteran is currently incarcerated. VHA internal guidance mandates VHA must provide necessary examinations to all appellants, including those currently incarcerated. See Bolton v. Brown, 8 Vet. App. 185 (1995). For incarcerated appellants, the duty to assist requires that VA tailor assistance to the peculiar circumstances of confinement. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). However, VA does not have any authority to require a prison to cooperate with a medical examination request. The matters are REMANDED for the following action: 1. Contact the appropriate facilities to request any inpatient or clinical records from the Air Force Base hospital in Holloman, New Mexico that pertain to treatment for back, hips, legs, and feet. 2. Ask the Veteran to identify the providers of all evaluations or treatment he received for the disabilities remaining on appeal and to provide authorizations for VA to obtain the complete records of any such private evaluations or treatment; the AOJ should then obtain such identified records. If any private records are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 3. Obtain for the record complete clinical records of all VA evaluations and treatment the Veteran has received for the disabilities remaining on appeal (i.e., update to the present all records of VA evaluations and treatment from all VAMCs). 4. Thereafter, schedule the Veteran for VA examinations in connection with his claims. If he remains incarcerated, the AOJ should contact the facility where the Veteran is currently located and request that arrangements be made for the Veteran to undergo appropriate examinations, such as having prison clinicians perform the examinations. The claims file must be made available to the examiner for review in connection with the examinations. Any medically indicated tests should be conducted. Based on review of the record and interview and examinations of the Veteran, the examiners should provide opinions that respond to the following: Increased Rating for Left Knee Please conduct and document range of motion studies that include active AND passive motion and weight-bearing AND non-weight-bearing motion with respect to the Veteran’s service-connected left knee. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. If the VA examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. All findings should be reported in detail. Please also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner is also asked to request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on the information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay statements regarding the observable symptoms he has experienced, including those associated with flare-ups. A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. Service Connection for Right Knee, Back, Bilateral Hip, and Bilateral Feet (a) Please identify ALL diagnoses to which the Veteran’s right knee, back, bilateral hip, and bilateral foot disabilities are medically attributable. To the extent that the Veteran does not have a diagnosable disability, the examiner MUST note whether the Veteran has demonstrated functional impairment, to include pain, in the noted body part. (b) As to each disability diagnosed, is it at least as likely as not (a 50 percent or greater probability) that this disability manifested during the Veteran’s service or is otherwise causally related to such service? Specifically with respect to the Veteran’s claim for service connection for a back disability, the examiner’s attention is directed to the Veteran’s January 2010 report of general information wherein he reported soreness in his back as a result of heavy lifting in the military. (c) If the answer to (b) is no, is it at least as likely as not (a 50 percent or greater probability) that this disability was either caused OR aggravated (the opinion MUST specifically discuss the concept of aggravation, and “aggravation” means the disability increased in severity beyond its natural progression) by his service-connected left knee disability? If aggravation is found, the opinion provider should indicate, to the extent possible, the approximate baseline level of disability before the onset of aggravation. A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. Service Connection for Blurred Vision, Migraines, Memory/Cognitive Loss, Neck, and Numbing and Tingling of Hands (a) Please identify ALL diagnoses to which the Veteran’s blurred vision, migraines, memory/cognitive loss, neck pain, and numbing and tingling of hands are medically attributable. To the extent that the Veteran does not have a diagnosable disability, the examiner MUST note whether the Veteran has demonstrated functional impairment, to include pain, in the noted body part. (b) As to each disability diagnosed, is it at least as likely as not (a 50 percent or greater probability) that this disability manifested during the Veteran’s service or is otherwise causally related to such service? In answering the above, the examiner’s attention is directed to the Veteran’s January 2016 testimony that he was “yanked out of a dump truck” into the ground and that he has experienced headaches since that incident. A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. TDIU A complete employment history of the Veteran should be obtained, including the last date of full-time and/or part-time employment. An assessment of the Veteran’s day-to-day functioning should also be made. The examiner is requested to opine on the types of limitations the Veteran’s service-connected disabilities ALONE (that is, without consideration of his age or nonservice-connected disabilities) have on his ability to obtain or maintain a substantially gainful occupation. The examiner is requested to discuss the types of employment in which the Veteran would be capable of engaging, given his individual skill set and educational background. (Continued on the next page)   A report of the opinion should be prepared and associated with the Veteran’s VA claims file. A comprehensive rationale must be provided for all opinions rendered. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel