Citation Nr: 18155374 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-45 266 DATE: December 4, 2018 ORDER Service connection for a right shoulder disability is denied. Service connection for a left shoulder disability is denied. Service connection for a back disability is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for a right shin splints is denied. Service connection for a left shin splints is denied. Service connection for a right hand disability is denied. Service connection for a left hand disability is denied. An initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for anxiety disorder is remanded. Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The presence of a chronic, identifiable right shoulder disability related to service has not been established. 2. The presence of a chronic, identifiable left shoulder disability related to service has not been established. 3. The presence of a chronic, identifiable back disability related to service has not been established. 4. The presence of a chronic, identifiable right knee disability related to service has not been established. 5. The presence of a chronic, identifiable left knee disability related to service has not been established. 6. The presence of chronic, identifiable right shin splints related to service has not been established. 7. The presence of chronic, identifiable left shin splints related to service has not been established. 8. The presence of a chronic, identifiable right hand disability related to service has not been established. 9. The presence of a chronic, identifiable left hand disability related to service has not been established. 10. Tinnitus is rated at the maximum schedular level. CONCLUSIONS OF LAW 1. The criteria for service connection for the claimed right shoulder disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §3.303. 2. The criteria for service connection for the claimed left shoulder disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §3.303. 3. The criteria for service connection for the claimed back disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §3.303. 4. The criteria for service connection for the claimed right knee disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §3.303. 5. The criteria for service connection for the claimed left knee disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §3.303. 6. The criteria for service connection for the claimed right shin splints have not been met. 38 U.S.C. §1110; 38 C.F.R. §3.303. 7. The criteria for service connection for the claimed left shin splints have not been met. 38 U.S.C. §1110; 38 C.F.R. §3.303. 8. The criteria for service connection for the claimed right hand disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §3.303. 9. The criteria for service connection for the claimed left hand disability have not been met. 38 U.S.C. §1110; 38 C.F.R. §3.303. 10. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.7, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from January 2009 to January 2013. He had service in Afghanistan. 1. Entitlement to service connection for bilateral shoulder disability. 2. Entitlement to service connection for back disability. 3. Entitlement to service connection for bilateral knee disability. 4. Entitlement to service connection for bilateral shin splints. 5. Entitlement to service connection for bilateral hand disability Issues 1-5. The appellant contends that he has multiple musculoskeletal disabilities primarily as the result of the rigors of service. He notes that there is limited medical documentation from service, because it took an extensive amount of time to get treatment. The Board concludes that the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a chronic disability related to service of either shoulder; the back; either knee; either shin; or either hand. 38 U.S.C. §1110; 38 C.F.R. §3.303. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In addition, service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. In this case, the more persuasive evidence of record shows that the appellant does not have a chronic, identifiable disability related to service of either shoulder, the back, either knee, either shin, or either hand. Service treatment records (STRs) reflect that the appellant was seen by medical personnel on multiple occasions, as well as during medical screenings and during an examination prior to his separation from service. There are no documented complaints of hand problems. There are documented complaints of shoulder, back, and knee pain, as well as shin splints. However, there were no objective findings of a chronic, identifiable disability in the shoulder, back, knees, or shins. Post service medical records show no confirmed diagnosis for any abnormal pathology of either shoulder, the back, either knee, either shin, or either hand. A January 2013 VA back examination reflects that the Veteran does not now have or has he ever been diagnosed with a thoracolumbar spine condition; an x-ray showed no evidence of arthritis. A January 2013 VA knee examination reflects that the Veteran does not now have or has he ever been diagnosed with a knee and/or lower leg condition; an x-ray showed no evidence of arthritis. A January 2013 VA shoulder examination reflects that the Veteran does not now have or has he ever been diagnosed with a shoulder and/or arm condition. X-rays of the ands were negative for any significant findings. VA examinations reflect consideration of the Veteran’s complaints, such as, a cracking sound of shoulders with rotation without pain; however, the examinations reflect that the Veteran’s claimed conditions do not impact his ability to work. Although VA treatment records suggest the presence of arthropathy in the shoulders, back, and knees, that disability has not been confirmed by diagnostic testing. Whereas, multiple X-rays, dated from January 2013 through January 2016, are normal. The Board accepts that the Veteran is competent to report his symptoms, treatment, and experiences during and since service. Layno v. Brown, 6 Vet. App. 465 (1994). For example, he is competent to report when he first felt pain in a particular joint and whether it has continued since that time. However, he is not competent to diagnose any pathology causing those symptoms or to link them to his period of service as this is a complex medical question not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran’s statements asserting that he has disability that is related to service has diminished probative value The Board further accepts that the appellant has pain affecting his shoulders, back, knees, shins, and hands. Pain alone can constitute a “disability” under 38 U.S.C. § 1110 because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). While VA physical therapy record, dated in February 2016, shows that the appellant has primary functional limitations with bending, lifting, sitting and standing for prolonged periods, the preponderance of the evidence shows that those limitations have not been chronic since service. For example, the report of the January 2013 VA examination shows that the appellant had no functional impairment from his shoulders, back, hands, knees, or lower leg. In addition, the report of the appellant’s initial VA outpatient treatment visit, dated in January 2014, show that he led an active lifestyle including cardiovascular training and weightlifting five days a week. Given the above, the Board concludes that the Veteran does not have a chronic, identifiable present disability linked to service. The active lifestyle of the Veteran as self-reported in January 2014 weighs against a finding of chronic pain disability that began in service and existed continuously since service. In sum, the Board finds the preponderance of the competent, credible evidence of record against a finding that the claimed functional limitations of either shoulder, the back, either knee, either hand, or either shin are a result of service. Absent chronic, identifiable disability of the back, either shoulder, either knee, either hand, or either shin, the appellant does not meet the criteria for service connection. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 6. Entitlement to a rating in excess of 10 percent for tinnitus. The Veteran contend that he should be given a rating higher than 10 percent for his tinnitus. The Board concludes that the current single 10 percent evaluation assigned for tinnitus is the maximum evaluation under VA rating criteria. There is no legal basis for the assignment of separate 10 percent disability ratings for the veteran’s tinnitus disability. 38 U.S.C. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2006); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S. Court of Appeals for Veterans Claims (CAVC) held that the pre-1999 and pre-June 13, 2003 versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision. In Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the CAVC erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. Subsequently, the stay of adjudication of tinnitus rating cases was lifted. The veteran’s service-connected tinnitus has been assigned a 10 percent rating. This is the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). In the instant case the facts are not in dispute. Resolution of the veteran’s appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. As shown above, the Board has found that the veteran is already receiving the maximum disability rating available for tinnitus under the applicable rating criteria. Furthermore, regardless of whether the veteran’s tinnitus is perceived as unilateral or bilateral, the outcome of this appeal does not change. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 7. Entitlement to an initial rating in excess of 10 percent for anxiety disorder is remanded. 8. Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. Issues 7-8. The appellant contends that the initial ratings for his service-connected bilateral hearing loss disability and anxiety disorder do not adequately reflect the severity of those disorders. Therefore, he maintains that increased ratings are warranted. The appellant was last examined by VA almost six years ago to determine the extent of his hearing loss disability and anxiety disorder. Since that time, VA outpatient records dated through February 2016 show complaints regarding those disabilities. The evidence suggests a material change in the disabilities and, hence, reexamination is necessary. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, those matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2016 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for any medical providers that treated his psychiatric disorder or hearing loss since 2016. Make two requests for the authorized records from any identified sources, unless it is clear after the first request that a second request would be futile. 3. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hearing loss disability. 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 should fully describe the functional effects caused by hearing disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected anxiety 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 his service-connected psychiatric disorder alone. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel