Citation Nr: 18158565 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 10-20 605 DATE: December 18, 2018 ORDER Entitlement to service connection for tinea corporis is granted. Entitlement to service connection for a skin condition affecting the face is granted. Entitlement to an initial rating of at least 10 percent for a right ankle disability prior to August 25, 2017, is granted. Entitlement to an initial rating of at least 10 percent for a right foot disability is granted. Entitlement to service connection for hyperlipidemia is denied. Entitlement to an effective date prior to January 5, 2007, for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to January 5, 2007, for the grant of service connection for bilateral hearing loss is denied. Entitlement to revision of the June 2008 rating decision on the basis of clear and unmistakable error (CUE) is denied. REMANDED Entitlement to service connection for osteoarthritis of multiple joints is remanded. Entitlement to service connection for a left upper extremity disorder, to include the shoulder and arm is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a left foot disorder, claimed as plantar fasciitis is remanded. Entitlement to service connection for thoracic outlet syndrome is remanded. Entitlement to service connection for a left upper abdomen muscle strain is remanded. Entitlement to service connection for genital herpes is remanded. Entitlement to service connection for a left eye disorder is remanded. Entitlement to service connection for a right eye disorder is remanded. Entitlement to service connection for a disorder characterized by chronic fatigue, claimed as chronic fatigue syndrome (CFS), is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for pharyngitis is remanded. Entitlement to service connection for bronchitis is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for a disorder characterized by acute chest pain is remanded. Entitlement to service connection for a cardiac disorder, claimed as left ventricular hypertrophy, is remanded. Entitlement to service connection for fatty liver disease is remanded. Entitlement to service connection for a kidney disorder is remanded. Entitlement to service connection for bladder dysfunction is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for type 2 diabetes mellitus (diabetes) is remanded. Entitlement to service connection for carpal tunnel syndrome is remanded. Entitlement to service connection for peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right foot disability is remanded. FINDINGS OF FACT 1. The Veteran’s tinea corporis had its onset during active duty service. 2. The Veteran’s facial skin disorder, claimed as keratosis and diagnosed as residuals of sand flea bites, had its onset during active duty service. 3. The Veteran’s right ankle and right foot disabilities have been manifested by painful motion throughout the appeal period. 4. The Veteran’s hyperlipidemia (high cholesterol) is a laboratory finding and not a disability for VA purposes. 5. The Veteran did not submit a claim, either formal or informal, for service connection for bilateral hearing loss or tinnitus until January 5, 2007. 6. The June 2008 rating decision the Veteran seeks to revise on the basis of CUE did not become final because the Veteran submitted a timely Notice of Disagreement to the claims addressed in that rating decision. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin disorder affecting the genitals have been satisfied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for a skin condition affecting the face have been satisfied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for entitlement to an initial rating of at least 10 percent a right ankle disability prior to August 25, 2017, have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 4. The criteria for an initial rating of at least 10 percent for a right foot disability have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5283. 5. Service connection for high cholesterol is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 6. Entitlement to an effective date prior to January 5, 2007, for the grant of service connection for tinnitus is not warranted. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.400. 7. Entitlement to an effective date prior to January 5, 2007, for the grant of service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.400. 8. Revision of the June 2008 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 is denied as the rating decision was not final. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1990 to August 1991 with service in the Persian Gulf. The Veteran also had service in the United States Army Reserves from November 1979 to November 1990 and August 1991 to June 1998, with various periods of Active Duty for Training (ADT) and Inactive Duty for Training (IDT). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim seeking service connection for balanitis has been expanded to include all disorders affecting the skin of the genitalis identified during the appeal period. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service Connection for Skin Disorders The Board finds that service connection for skin conditions affecting the face and groin is warranted. During a September 2007 VA examination, the Veteran was found to have rough patches of skin on his right cheek, which the VA examiner diagnosed as residuals of sand flea bites. The Veteran reported that these rough patches have been present since service. Additionally, during a November 2017 VA examination, the Veteran was diagnosed with tinea corporis affecting his groin. The VA examiner noted that the Veteran has had this condition since at least 2002, as supported by the medical records, and the Veteran reported that his groin rash has been present since his active duty service. The Veteran is competent to report the onset of his symptoms and the Board finds his reports credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, all three elements necessary to establish service connection have been met. See 38 C.F.R. § 3.303. The Board notes the negative nexus opinion of the November 2017 VA examiner, but as the examiner’s opinion was based on the lack of documentation of this condition in the Veteran’s medical records prior to 2002, the Board finds the opinion inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate). Service Connection for Hyperlipidemia Regarding the Veteran’s claim for service connection for hyperlipidemia, the Board notes that this is a laboratory result and not an actual disability for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule). To be considered for service connection, a claimant must first have a current disability. See 38 U.S.C. § 1110, 1131. The term “disability” means impairment in earning capacity resulting from functional impairment. See 38 C.F.R. § 4.1; see Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran has not identified any underlying disability he claims is manifested by high cholesterol. Accordingly, there is no basis for awarding service connection for high cholesterol, and the appeal in this regard is denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Increased Rating The Veteran is entitled to at least 10 percent for his service-connected right ankle and right foot disabilities due to painful motion. Where a veteran has a noncompensable rating for a musculoskeletal disability and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Additionally, the United States Court of Appeals for Veterans Claims (the Court) held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes (DC) predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Id. In this case, the evidence shows the Veteran reported that his right foot and ankle disabilities have been manifest by painful motion throughout the appeal period. Thus, the Board finds a rating of at least 10 percent is warranted for each of these disabilities. Effective Dates The Veteran is not entitled to an effective date prior to January 5, 2007, for the grant of service connection for tinnitus and bilateral hearing loss. He contends that a claim for benefits was raised prior to this date because VA received copies of his service records, which he contends constituted an informal claim under 38 C.F.R. §§ 3.155 and 3.157. He also seeks an earlier effective date arguing that his conditions were diagnosed prior to 2007. The basic facts are not in dispute. The Veteran’s initial application for service connection for bilateral hearing loss and tinnitus was received by VA on January 5, 2007. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). During the relevant time period, the term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Prior to March 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Here, the RO granted service connection effective the date the Veteran’s original claim of service connection for bilateral hearing loss and tinnitus was received by VA. An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Board acknowledges the Veteran’s contention that VA’s receipt of his service records prior to 2007 constitutes an informal claim. However, these documents alone could not be considered an informal claim for benefits because they did not evidence a belief in entitlement to a benefit or an intent to apply for benefits, and did not identify a benefit being sought by the Veteran. See Sellers v. Wilkie, 30 Vet. App. 157, 163 (2018) (a claim includes a statement of an intent to seek benefits); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Moreover, these documents did not constitute a claim under 38 C.F.R. § 3.157. Under this section (as it was prior to March 2015), a report of examination or hospitalization may be accepted as an informal claim for benefits if it meets the requirements of § 3.157(b). Section 3.157(b) provided that receipt of a VA outpatient or hospital examination or admission to a VA hospital could be accepted as an informal claim for increased benefits or an informal claim to reopen “[o]nce a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree.” 38 C.F.R. § 3.157 (b) (2002). This provision does not apply in this case because service connection was not established for any condition prior to 2007, nor was a claim disallowed for the reason that a service-connected disability was not compensable in degree. Cf. MacPhee v. Nicholson, 459 F.3d 1323, 1328 (Fed. Cir. 2006) (holding that VA medical records did not constitute an informal claim for benefits pursuant to § 3.157 because service-connection was not in effect for the disability at issue); cf. Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993) (holding that § 3.157 did not apply because there had not been a prior allowance or disallowance of a formal claim for compensation or pension). Because the Veteran did not file a formal or informal application for service connection prior to January 5, 2007, VA is precluded, as a matter of law, from granting an effective date prior to that date for service connection for bilateral hearing loss and tinnitus. As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law. CUE The Board finds that revision of the June 2008 rating decision cannot be granted as a matter of law because that rating decision did not become final. Section 3.105(a) provides that a previous RO determination that is final and binding will be reversed or amended where evidence establishes that the decision contained CUE. Thus, revision of prior rating decisions is only available where the rating decision being challenged has become final. Here, the Veteran submitted a timely Notice of Disagreement with the June 2008 rating decision, and the claims he contends should have been granted are currently on appeal. Thus, the Veteran’s motion for revision on the basis of CUE must be denied. REMANDED ISSUES The remaining claims must be remanded for further development. The Veteran asserts that many of the claimed disorders began during service. The Veteran served in the Army Reserve for approximately 20 years, with various periods of ADT and IDT. On remand, the RO should take appropriate steps to determine the Veteran’s periods of ADT and IDT. The Veteran seeks service connection for chronic fatigue, claimed as CFS. Although the VA examiner determined that the Veteran did not meet the diagnostic criteria for CFS, the examiner did note that the Veteran had Epstein-Barr virus (EBV) and that his fatigue may be related to that disorder. The examiner did not provide an opinion as to whether EBV was related to service. The Veteran further contends that some of his disorders are due to his service in the Persian Gulf. The examiner did not address whether any of his claimed disorders is a medically unexplained chronic multi symptom illness. Additionally, no opinion was given as to whether any of the Veteran’s disorders is due to a disease or injury incurred during a period of ADT or are due to an injury incurred during a period of IDT. As to the Veteran’s claims for a higher initial rating for his right ankle and right foot disabilities, new examinations should be provided. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” Sharp at 35. In light of these decisions, a new VA examination should be provided. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal. 2. Take appropriate steps to determine the Veteran’s periods of ADT and IDT. The Board notes that documentation noting retirement points alone is not sufficient as the Board must know the specific dates the Veteran served on ADT and IDT. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptomatology relating to his claimed disorders. The Veteran should be provided an appropriate amount of time to submit this lay evidence 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ankle and right foot disabilities. 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 conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the 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 why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A rationale should be provided. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Schedule the Veteran for the appropriate VA examinations to address claims for service connection. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s active duty service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e) Is it at least as likely as not that any diagnosed disorder is due to a disease or injury incurred during a period of ADT or due to an injury incurred during a period of IDT? (f) If not directly related to service on the basis of questions (b)-(e), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (g) If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies)? If yes, was that increase in severity due to the natural progress of the disease? In answering all questions (a) to (g), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran’s VA claims file. The examiner should also address whether the Veteran’s reported fatigue is due to a disease or injury that had its onset during service, is due to an injury or disease that was incurred in service or during a period of ADT, or due to an injury that was incurred during a period of IDT. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel