Citation Nr: 18159559 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-61 731 DATE: December 19, 2018 ORDER Reopening of entitlement to service connection for right ankle disability is denied. Reopening of entitlement to service connection for bilateral hearing loss is denied. Reopening of entitlement to service connection for right testicular spermatocele (claimed as testicular neoplasm) is denied. Reopening of entitlement to service connection for left foot numbness and tingling, to include as secondary to service-connected L1-2 disc protrusion without any impingement (herein lumbar back disability), is denied. Reopening of entitlement to service connection for right foot numbness and tingling, to include as secondary to service-connected lumbar back disability, is denied. Entitlement to service connection for sleep apnea (claimed as sleep disturbances), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. Entitlement to a rating in excess of 10 percent for lumbar back disability is denied. Entitlement to a compensable rating for migraine headaches is denied. REMANDED Entitlement to service connection for gastrointestinal disorder, to include as secondary to service-connected PTSD and as secondary to medications and/or therapeutic treatments prescribed for any service-connected disabilities, is remanded. Entitlement to a compensable rating for traumatic brain injury (TBI) residuals is remanded. Entitlement to a rating in excess of 50 percent for PTSD is remanded. FINDINGS OF FACT 1. Entitlement to service connection for right ankle disability was denied in the December 2013 Rating Decision, which was not timely appealed and became final; new, but not material, evidence was subsequently associated with the claims file. 2. Entitlement to service connection for bilateral hearing loss was denied in the December 2013 Rating Decision, which was not timely appealed and became final; new, but not material, evidence was subsequently associated with the claims file. 3. Entitlement to service connection for right testicular spermatocele was denied in the December 2013 Rating Decision, which was not timely appealed and became final; new, but not material, evidence was subsequently associated with the claims file. 4. Entitlement to service connection for left foot numbness and tingling was denied in the December 2013 Rating Decision, which was not timely appealed and became final; new, but not material, evidence was subsequently associated with the claims file. 5. Entitlement to service connection for right foot numbness and tingling was denied in the December 2013 Rating Decision, which was not timely appealed and became final; new, but not material, evidence was subsequently associated with the claims file. 6. The Veteran has never been diagnosed with sleep apnea and the probative evidence does not indicate any sleep issues apart from those already attributed to the Veteran’s service-connected PTSD. 7. The Veteran’s lumbar back disability manifests in painful motion without functional loss. 8. The Veteran’s migraine headaches have never manifested in prostrating attacks. CONCLUSIONS OF LAW 1. The criteria for reopening of entitlement to service connection for right ankle disability have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for reopening of entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for reopening of entitlement to service connection for right testicular spermatocele have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for reopening of entitlement to service connection for left foot numbness and tingling have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for reopening of entitlement to service connection for right foot numbness and tingling have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 6. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 7. The criteria for a rating in excess of 10 percent for lumbar back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, Diagnostic Code (DC) 5237, General Rating Formula for Diseases and Injuries of the Spine (2017). 8. The criteria for entitlement to a compensable rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.124a, DC 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from September 2006 to August 2013. New and Material Evidence In general, agency of original jurisdiction (AOJ) decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). “New” evidence is that which is not cumulative or redundant of that previously of record; “material” evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Entitlement to service connection for right ankle disability, bilateral hearing loss, right testicular spermatocele, and numbness and tingling of the bilateral feet were denied in the December 2013 Rating Decision because the evidence did not show pertinent diagnoses for VA purposes; a notification letter containing appeal rights was mailed concurrently in December 2013. The Veteran did not timely appeal the denials and they became final. Although new evidence has been associated with the claims file since the December 2013 denials, that evidence is not material. 1. Right Ankle Disability The November 2013 VA ankle conditions examination resulted in no right ankle diagnosis. Since the December 2013 denial, the claims file was augmented with various documents, including a September 2015 VA back conditions examination report, Omaha VAMC records (associated with the claims file in November 2016), and a February 2017 Brief. Of note, the September 2015 VA back conditions examiner found normal deep tendon reflexes of the bilateral ankles. The Omaha VAMC records were not pertinent to this claim (only pertinent to the mental health claim) and the February 2017 Brief lacked pertinent contentions. Although this evidence is new, it is not material because it is not sufficient, by itself or with previous evidence of record, to raise a possibility of substantiating the claim (none of the new evidence establishes a right ankle disability). Thus, the claim for reopening is denied. 2. Bilateral Hearing Loss Impaired hearing is considered a disability for VA purposes when: (a) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater; or (b) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (c) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The November 2013 VA hearing loss and tinnitus examination resulted in no diagnosis of hearing loss for VA purposes (right ear measured 5 dB at 1000 Hz, 10 dB at 2000 Hz, 10 dB at 3000 Hz, and 15 dB at 4000 Hz; left ear measured 5 dB at 1000 Hz, 5 dB at 2000 Hz, 0 dB at 3000 Hz, and 5 dB at 4000 Hz; Maryland CNC Test was 96 percent in the right ear and 94 percent in the left ear). Since the December 2013 denial, the claims file was augmented with various documents, including an August 2015 hearing loss and tinnitus examination report, Omaha VAMC records (associated with the claims file in November 2016), and a February 2017 Brief. Of note, the August 2015 hearing loss and tinnitus examiner also found no diagnosis of hearing loss for VA purposes (right ear measured 5 dB at 1000 Hz, 10 dB at 2000 Hz, 10 dB at 3000 Hz, and 15 dB at 4000 Hz; left ear measured 5 dB at 1000 Hz, 15 dB at 2000 Hz, 10 dB at 3000 Hz, and 10 dB at 4000 Hz; Maryland CNC Test was 94 percent bilaterally). The Omaha VAMC records were not pertinent to this claim and the February 2017 Brief lacked pertinent contentions. Although this evidence is new, it is not material because it is not sufficient, by itself or with previous evidence of record, to raise a possibility of substantiating the claim (none of the new evidence establishes a diagnosis of hearing loss for VA purposes). Thus, the claim for reopening is denied. 3. Right Testicular Spermatocele February 2009 and June 2010 service treatment records contain ultrasound results of a normal right testicle. The November 2013 VA male reproductive systems examination resulted in no right testicle diagnosis. Since the December 2013 denial, the claims file was augmented with various documents, including Omaha VAMC records (associated with the claims file in November 2016) and a February 2017 Brief. However, the Omaha VAMC records were not pertinent to this claim and the February 2017 Brief lacked pertinent contentions. Although this evidence is new, it is not material because it is not sufficient, by itself or with previous evidence of record, to raise a possibility of substantiating the claim (none of the new evidence establishes a right testicular disability). Thus, the claim for reopening is denied. 4. Left Foot Numbness and Tingling June 2013 service treatment records contain an MRI of the lumbar spine that was ordered because of the Veteran’s reports of neuralgia and numbness to the bilateral lower legs for the past year. The November 2013 VA peripheral nerve conditions examination resulted in no diagnosis, despite the Veteran’s reports of mild numbness in the bilateral lower extremities. Since the December 2013 denial, the claims file was augmented with various documents, including a September 2015 VA back conditions examination report, February 2016 Correspondence; Omaha VAMC records (associated with the claims file in November 2016), and a February 2017 Brief. Of note, the September 2015 VA back conditions examiner found normal deep tendon reflexes, normal sensory exam, no radiculopathy, and no neurological abnormalities. In the February 2016 Correspondence, the representative contended that the Veteran’s bilateral feet numbness and tingling was secondary to his service-connected lumbar back disability. The Omaha VAMC records were not pertinent to this claim. In the February 2017 Brief, the representative contended that the September 2015 VA examiner: (a) failed to recognize the Veteran’s in-service pain and tingling; and (b) may have held the Veteran’s attitude against him (the examiner noted that it was difficult to obtain a history from the Veteran because he was a vague and reticent historian and seemed to be angry at the time of the examination). However, the September 2015 examiner did recognize the Veteran’s in-service reports because the examiner noted the reported onset 3 to 4 years ago (four years prior to this 2017 examination places the reported onset during service in 2013). Further, there is no objective evidence that the examiner held the Veteran’s attitude against him; rather, the examiner seemed to be simply noting that the Veteran seemed guarded when answering questions, which is also noted elsewhere in the claims file. See April 2015 Mental Health Symptoms Checklist (the Veteran self-identified his inability to share feelings); September 2015 Omaha VAMC record (the Veteran is guarded answering some questions). As such, although this evidence is new, it is not material because it is not sufficient, by itself or with previous evidence of record, to raise a possibility of substantiating the claim (none of the new evidence establishes a peripheral nerve disability). Thus, the claim for reopening is denied. 5. Right Foot Numbness and Tingling This issue is denied on the same reasons and bases as discussed immediately above (for the issue of reopening of entitlement to service connection for left foot numbness and tingling). Service Connection Direct service connection generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). 6. Sleep Apnea Service treatment records are silent for pertinent abnormalities. Although the Veteran has never been afforded a sleep apnea examination, other VA examinations contain pertinent information. The August 2015 VA PTSD examiner noted chronic sleep impairment attributable to PTSD, but specifically noted no sleep apnea. The September 2015 VA headaches examiner also noted that the Veteran was sometimes unable to get to sleep, but only when the Veteran had a headache. The April 2015 Mental Health Symptoms Checklist (completed by the Veteran) also indicated chronic sleep problems, but only in the context of his mental health disability. In the February 2016 Correspondence, the representative contended that the Veteran is entitled to a sleep study to determine whether he has a sleeping disorder and, if so, to also determine whether it is secondary to his service-connected PTSD. However, the Veteran is not entitled to a VA sleep apnea examination because the probative evidence does not indicate that the Veteran has sleep apnea or any sleep issues separate from those already associated with his PTSD. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Veteran’s chronic sleep impairment is already accounted for in his current PTSD rating at 50 percent. 38 C.F.R. § 4.130, DC 9411, General Rating Formula for Mental Disorders; November 2016 Statement of the Case. Further, the Omaha VAMC records were not pertinent to this claim and the February 2017 Brief lacked pertinent contentions. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Thus, the claim for service connection is denied on a direct and secondary basis. Increased Rating In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. 7. Lumbar Back Disability The Veteran’s lumbar spine disability has been rated at 10 percent under DC 5237 since May 4, 2015. 38 C.F.R. § 4.71a, DC 5237, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula); December 2017 Codesheet. Under the General Rating Formula, a 10 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for: forward flexion of the thoracolumbar spine at 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The September 2015 VA back conditions examiner noted the Veteran’s reports, including: pain about three days per week, lasting about two days at a time; pain with movement; difficulty picking up heavy items; numbness and tingling in the tips of his toes for the last 3 to 4 years; no radiation of the pain; no bladder or bowel control issues; and no flare-ups. Initial range of motion (ROM) was all normal for: forward flexion (0 to 90 degrees), extension (0 to 30 degrees), right lateral flexion (0 to 30 degrees), left lateral flexion (0 to 30 degrees), right lateral rotation (0 to 30 degrees), and left lateral rotation (0 to 30 degrees); pain was noted during the examination, but it did not result in functional loss. The examiner also found: localized tenderness or pain on palpation of lower lumbar spine midline; no pain with weight-bearing; no additional loss of function or ROM after three repetitions; no guarding or muscle spasm; normal muscle strength; no muscle atrophy; normal bilateral knee and ankle deep tendon reflexes; normal sensory examination; negative straight leg test; no radiculopathy; no ankylosis; no associated neurologic abnormalities; no intervertebral disc syndrome; and no arthritis documented on imaging studies. Further, the examiner noted that he was unable to determine, without resorting to mere speculation, whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time because it could not be observed during the examination; however, the examiner noted that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. In the February 2017 Brief, the representative contended that the September 2015 VA back conditions examination was inadequate because ROM testing was not completed. However, as listed above, the examiner did conduct ROM testing and noted all measurements in the report. In sum, based on the objective testing, a 10 percent rating, but no higher, is warranted for painful joint motion without functional loss. 38 C.F.R. § 4.49 (joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint); Burton v. Shinseki, 25 Vet. App. 1 (2011) (38 C.F.R. § 4.49 applies to all forms of painful motion of joints, not just arthritis); Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment). Thus, the claim for an increased rating is denied. 8. Migraine Headaches The Veteran’s migraine headache disability has been rated as noncompensable under DC 8100 since August 21, 2013. 38 C.F.R. § 4.124a, DC 8100; December 2017 Codesheet. Under DC 8100, a 10 percent rating is warranted for: characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for: characteristic prostrating attacks averaging once a month over the last several months. A 50 percent rating is warranted for: very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A noncompensable rating is warranted for less frequent attacks than previously listed. Crucially, no compensable ratings are warranted because the Veteran’s migraine headaches have never manifested in prostrating attacks. See November 2013 VA headaches examination (did not report prostrating attacks); November 2013 VA TBI examination (did not report prostrating attacks); September 2015 VA headaches examination (did not report prostrating attacks). Further, the Omaha VAMC records were not pertinent to this claim and the February 2017 Brief lacked pertinent contentions. In the February 2016 Correspondence, the representative contended that the Veteran’s reports of constant headaches were enough to increase the rating; however, the Board highlights that all the compensable ratings under DC 8100 require, at least, prostrating attacks, which have never been subjectively or objectively documented in the claims file. Thus, the claim for an increased rating is denied. REASONS FOR REMAND 1. Gastrointestinal Disorder Service treatment records document October 2007 diarrhea, March 2008 diarrhea and viral gastroenteritis, and March 2009 diarrhea and viral gastroenteritis. An August 2015 VA intestinal conditions examiner documented the Veteran’s reports (gassy, soft stool passed three times per day, stomach/gut turning a lot, no difference when avoiding dairy), but found no intestinal diagnosis. In the September 2015 opinion, the examiner stated that the pertinent service records only noted self-limiting acute gastroenteritis which resolved without residual. In the February 2016 Correspondence, the representative contended that VA failed to sympathetically develop the Veteran’s claim in not considering whether any gastrointestinal condition is secondary to one of his service-connected disabilities or a medication and/or therapeutic treatment prescribed for a service-connected disability. In the February 2017 Brief, the representative contended that the Veteran has experienced continued gastrointestinal symptoms since service. The Board must remand to verify whether the Veteran had foreign service. During the August 2015 VA PTSD examination, the Veteran reported serving two tours in Afghanistan; however, his DD-214 specifically lists no foreign or sea service. Further, the claims file lacks the Veteran’s military personnel records, which usually contain a chronological record of duty assignments. It is crucial to this claim to verify whether the Veteran served in Southwest Asia because that fact determines whether VA may consider the service connection theory of chronic unexplained multisymptom illness. If verified, then the Board must also remand to obtain an addendum nexus opinion. 2. TBI Residuals The November 2013 VA TBI examination found the only TBI residual to be headaches (approximately every two to three days). In the April 2015 VA Form 21-536b, the Veteran reported that his TBI residuals had worsened (trouble concentrating and remembering; weekly migraines with some sensitivity to noise; more reclusive with social functioning; very irritable). The August 2015 VA TBI examination found no TBI and no TBI residuals (the examiner stated that it was unclear how a clinician who reviewed the service treatment records could possibly render a diagnosis of TBI). In the February 2016 Correspondence, the representative contended that the August 2015 VA TBI examination was inadequate because it did not account for the Veteran’s reported headache residual. The Board must remand to obtain an addendum opinion determining whether any symptoms of cognitive impairment currently attributed to PTSD are actually attributable to the TBI, such that the symptoms are distinguishable. Specifically, the rating criteria for TBI residuals contemplate various facets of cognitive impairment (memory, attention, concentration, executive functions, judgment, social interaction, orientation, motor activity, visual-spatial orientation, subjective symptoms, neurobehavioral effects, communication, and consciousness) that overlap with the rating criteria for PTSD. 38 C.F.R. § 4.124a, DC 8045, Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified; 38 C.F.R. § 4.130, DC 9411, General Rating Formula for Mental Disorders. Some of the symptoms contended to be TBI residuals are already contemplated by the PTSD rating (trouble concentrating and remembering; reclusive social functioning; irritability). See November 2016 Statement of the Case. Thus, it is crucial for an examiner to opine, if possible, whether the Veteran’s PTSD symptoms are distinguishable from any TBI residuals. 3. PTSD The claims file contains probative evidence regarding the PTSD manifestations during the appeal period. See April 2015 Mental Health Systems Checklist (self-reporting several symptoms); August 2015 VA PTSD examination (various subjective and objective symptoms); September 2015 Omaha VAMC records (self-reporting several symptoms). However, as discussed above, many of the PTSD rating criteria overlap with the TBI residuals rating criteria and the claims file lacks a medical opinion about whether the Veteran’s PTSD symptoms are distinguishable from any TBI residuals. As such, the increased rating PTSD and increased rating TBI residuals issues are inextricably intertwined and must be remanded concurrently. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Obtain any outstanding military personnel records and verify whether the Veteran had Southwest Asia service; if Southwest Asia service is verified, then examine whether the Veteran has a chronic unexplained multisymptom illness (gastrointestinal in nature) attributable to that service. 2. Examine whether the Veteran’s PTSD symptoms are distinguishable from any TBI residuals. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel