Citation Nr: 18161286
Decision Date: 12/31/18	Archive Date: 12/31/18

DOCKET NO. 17-06 577
DATE:	December 31, 2018

ISSUES

1. Whether new and material evidence has been submitted to reopen the claim for service connection for a chronic condition to account for joint pain, variously claimed as arthritis.

2. Whether new and material evidence has been submitted to reopen the claim for service connection for a thoracic back disability, variously claimed as arthritis.

3. Whether new and material evidence has been submitted to reopen the claim for service connection for degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis.

4. Whether new and material evidence has been submitted to reopen the claim for service connection for left ventricular hypertrophy, claimed as cardiovascular symptoms.

5. Whether new and material evidence has been submitted to reopen the claim for service connection for hypertension.

6. Whether new and material evidence has been submitted to reopen the claim for service connection for diabetes mellitus, type II.

7. Whether new and material evidence has been submitted to reopen the claim for service connection for a sleep disability.

8. Whether new and material evidence has been submitted to reopen the claim for service connection for headaches.

9. Entitlement to service connection for headaches.

10. Whether new and material evidence has been submitted to reopen the claim for service connection for a neuropsychological condition.

11. Entitlement to service connection for an acquired psychiatric disorder, claimed as neuropsychological condition, variously diagnosed as major depressive disorder, recurrent, moderate.

12. Entitlement to service connection for a knee disability.

13. Evaluation of levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, claimed as low back condition, currently evaluated as 10 percent disabling.

14. Evaluation of decreased sensory finding, right lower extremity (superficial peroneal nerve), currently assigned a noncompensable rating.

15. Evaluation of bilateral hearing loss disability, currently assigned a noncompensable rating.

ORDER

New and material evidence sufficient to reopen the claim of service connection for a chronic condition to account for joint pain, variously claimed as arthritis has not been received, and the application to reopen the claim is denied.



New and material evidence sufficient to reopen the claim of service connection for a thoracic back disability has not been received, and the application to reopen the claim is denied.

New and material evidence sufficient to reopen the claim of service connection for degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis has not been received, and the application to reopen the claim is denied.

New and material evidence sufficient to reopen the claim of service connection for left ventricular hypertrophy, claimed as cardiovascular symptoms has not been received, and the application to reopen the claim is denied.

New and material evidence sufficient to reopen the claim of service connection for hypertension has not been received, and the application to reopen the claim is denied.

New and material evidence sufficient to reopen the claim of service connection for diabetes mellitus, type II has not been received, and the application to reopen the claim is denied.

New and material evidence sufficient to reopen the claim of service connection for a sleep disability has not been received, and the application to reopen the claim is denied.

New and material evidence sufficient to reopen the claim of service connection for headaches has been received, and to that extent only, the claim is granted.

Entitlement to service connection for headaches is denied.

New and material evidence sufficient to reopen the claim of service connection for a neuropsychological condition has been received, and to that extent only, the claim is granted.

Entitlement to service connection for major depressive disorder, recurrent, moderate is granted.

Entitlement to service connection for a knee disability is denied.

Evaluation of levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, claimed as low back condition, currently evaluated as 10 percent disabling is denied.

Evaluation of decreased sensory finding, right lower extremity (superficial peroneal nerve), currently assigned a noncompensable rating is denied.

Evaluation of bilateral hearing loss disability, currently assigned a noncompensable rating is denied.

FINDINGS OF FACT

1. An August 2011 rating decision originally denied service connection in part for a chronic condition to account for joint pain, variously claimed as arthritis; degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis; left ventricular hypertrophy, claimed as cardiovascular symptoms; hypertension; diabetes mellitus, type II; a sleep disability, headaches, and a neuropsychological condition.  The Veteran filed a September 2011 Notice of Disagreement (NOD).  He did not perfect an appeal.  The August 2011 rating decision became final.

2. A November 2011 rating decision originally denied service connection in part for a thoracic back disability, variously claimed as arthritis.  The Veteran did not file a Notice of Disagreement or submit new and material evidence within one year.  The November 2011 rating decision became final.

3. The issues were revisited in a November 2014 rating decision.  

4. Additional new evidence received since the unappealed August 2011 and November 2011 rating decisions for a chronic condition to account for joint pain, variously claimed as arthritis; a thoracic back disability, variously claimed as arthritis; degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis; left ventricular hypertrophy, claimed as cardiovascular symptoms; hypertension; diabetes mellitus, type II; and a sleep disability; is cumulative of evidence previously of record at the time of the prior final denials.  It does not cure the critical evidentiary defects that existed at the time of the prior denials, and does not raise a reasonable possibility of substantiating the claims.

5. The August 2011 rating decision also denied service connection for headaches and a neuropsychological disorder.  The Veteran was notified of his rights, and filed a timely Notice of Disagreement (NOD).  He did not perfect an appeal.  That decision became final.

6. The issues were revisited in a November 2014 rating decision.  

7. The evidence associated with the record since the August 2011 rating decision relates to an unestablished fact necessary to substantiate the claims for service connection for headaches and a neuropsychological disorder, and raises a reasonable possibility of substantiating the claims of service connection for a headache and neuropsychological disability.

8. Headaches were not manifest in service, and are not otherwise attributable to service.   

9. The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s major depressive disorder, recurrent, moderate had its onset during service.

10. The Veteran does not have a knee disability.

11. Any claimed knee disability is already encompassed by the rating for service-connected decreased sensory finding, right lower extremity (superficial peroneal nerve).

12. Levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, claimed as low back condition, is manifested by localized tenderness not resulting in abnormal gait or abnormal spinal contour; with combined range of motion of the thoracolumbar spine within normal range, forward flexion of the thoracolumbar spine within normal range, and painful motion upon examination; and no incapacitating episodes, abnormal gait, or Intervertebral Disc Syndrome (IVDS).

13. Decreased sensory finding, right lower extremity (superficial peroneal nerve) is manifested by mild incomplete paralysis.

14. The Veteran demonstrated at worst, level I sensorineural hearing loss in the right ear, and level I in the left ear.

CONCLUSIONS OF LAW

1. The August 2011 rating decision denying service connection for a chronic condition to account for joint pain, variously claimed as arthritis; degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis; left ventricular hypertrophy, claimed as cardiovascular symptoms; hypertension; diabetes mellitus, type II; a sleep disability, headaches, and a neuropsychological condition is now final.  

2. The November 2011 rating decision denying service connection for a thoracic back disability is now final.

3. The evidence received since the August 2011 rating decision is not new and material, and the claim for service connection for chronic condition to account for joint pain, variously claimed as arthritis is not reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

4. The evidence received since the November 2011 rating decision is not new and material, and the claim for service connection for a thoracic back disability, variously claimed as arthritis is not reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

5. The evidence received since the August 2011 rating decision is not new and material, and the claim for service connection for degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis is not reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

6. The evidence received since the August 2011 rating decision is not new and material, and the claim for service connection for left ventricular hypertrophy, claimed as cardiovascular symptoms is not reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

7. The evidence received since the August 2011 rating decision is not new and material, and the claim for service connection for hypertension is not reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

8.  The evidence received since the August 2011 rating decision is not new and material, and the claim for service connection for diabetes mellitus, type II is not reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

9. The evidence received since the August 2011 rating decision is not new and material, and the claim for service connection for a sleep disability is not reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

10. New and material evident sufficient to reopen the claim of service connection for headaches has been received.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 

11. Headaches were not incurred in or aggravated by service, and are not otherwise attributable to service.  38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

12. New and material evident sufficient to reopen the claim of service connection for a neuropsychological disability has been received.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).

13. Resolving reasonable doubt in the Veteran’s favor, major depressive disorder, recurrent, moderate was incurred in service.  38 U.S.C. § 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

14. A knee disability was not incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

15. The criteria for an evaluation in excess of 10 percent for levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, claimed as low back condition have not been met or approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.14, 4.3, 4.4, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5242 (2017).

16. The criteria for a compensable evaluation for decreased sensory finding, right lower extremity (superficial peroneal nerve), have not been met or approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.14, 4.124a, 4.3, 4.7, Diagnostic Code 5242-8522 (2017).

17. The criteria for a compensable evaluation for bilateral hearing loss disability have not been met or approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2017). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1981 to July 1985, and from March 1987 to April 1993. 

This matter is before the Board of Veterans Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.   

In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record.  The Board has recharacterized the appeal in the matter claimed as a neuropsychological condition and more recently diagnosed as major depressive disorder as encompassing the issue on the title page.  Lastly, the Board observes that during the pendency of this appeal, the Veteran filed a July 2017 Application for Disability Compensation and Related Compensation Benefits.  He listed service connection for “Mental Health Conditions.”  

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017).

As a threshold issue, the record indicates that the Veteran’s Service Treatment Records (STRs) were not available for his first period of service from 1981 to 1985.  The Board observes that where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable.  See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  In this matter, the Board’s analysis of the Veteran’s claim has been undertaken with this heightened duty.  However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board’s obligation to discuss and evaluate evidence and consider the benefit of the doubt rule is heightened.  Russo v. Brown, 9 Vet. App. 46 (1996).  This heightened duty is exemplified by the VA’s ongoing efforts taken to obtain records and fully develop his claims.  Given the facts of the instant case, and the private and VA treatment records available, we are able to make an informed decision.

In particular, the Veteran was sent a September 12, 2014 letter from VA informing him of the critical evidence necessary to substantiate his claims, including how to cure the defects related to his new and material evidence claims.  It also requested that the Veteran submit any copies or substitute documents from his first period of service from 1981 to 1985.  VA still obtained the STRs, including separation examinations, from the more recent period of service.  Lastly, the letter shows, “Your personnel records were reviewed and do not show any evidence of you served on active duty in the Southwest Asia theater of operations during the Gulf War.  Thus exposure to environmental hazards cannot be conceded and thus there is no basis for service connection because of an environmental hazard.”  

The Veteran through his attorney submitted a November 9, 2017 Brief in response to 90 Day Letter (Brief).  In it, they only list and discuss three issues: service connection for major depressive disorder and headaches, and an increased rating for sensory finding, right lower extremity.  Under a list of “Issues,” he lists specifically those three, but no more.  The Veteran through his attorney also identifies specifically four pieces of new evidence.  They waived RO review of additional evidence, and request, “Please forward the case to the Board for a decision.”  The Board will proceed accordingly.

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).



Finality of Service Connection Claims

If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record.  38 U.S.C. § 5108 (a).  A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a). 

The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.”  See id.

The Board would note that regardless of how the RO (or the Board in a prior denial) ruled on the question of reopening, the Board must re-decide that matter on appeal.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial) and Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial).

Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence was not previously presented to the Board.  See Anglin v. West, 203 F.3d 1343 (2000).

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).  However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that 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).  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).

1. Whether new and material evidence has been submitted to reopen the claim for service connection for a chronic condition to account for joint pain, variously claimed as arthritis

2. Whether new and material evidence has been submitted to reopen the claim for service connection for a thoracic back disability, variously claimed as arthritis

3. Whether new and material evidence has been submitted to reopen the claim for service connection for degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis

4. Whether new and material evidence has been submitted to reopen the claim for service connection for left ventricular hypertrophy, claimed as cardiovascular symptoms

5. Whether new and material evidence has been submitted to reopen the claim for service connection for hypertension

6. Whether new and material evidence has been submitted to reopen the claim for service connection for diabetes mellitus, type II

7. Whether new and material evidence has been submitted to reopen the claim for service connection for a sleep disability

A review of the procedural and evidentiary history is instructive.

By way of background, an August 2011 rating decision originally denied service connection in part for a chronic condition to account for joint pain, variously claimed as arthritis; degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis; left ventricular hypertrophy, claimed as cardiovascular symptoms; hypertension; diabetes mellitus, type II; a sleep disability, headaches, and a neuropsychological condition.  The Veteran filed a September 2011 Notice of Disagreement (NOD).  He did not perfect an appeal.  The August 2011 rating decision became final.

A November 2011 rating decision also originally denied service connection in part for a thoracic back disability, variously claimed as arthritis.  The Veteran did not file an NOD or submit new and material evidence within one year.  The November 2011 rating decision became final.

The AOJ furnished the Veteran with an August 2012 Statement of the Case (SOC).  It explained the critical evidentiary defects necessary to substantiate his claims.

In August 2014, the Veteran filed new applications in part to reopen the previously denied service connection claims and for new increased rating claims.  Specifically, VA received an application to reopen the previously denied claims for service connection 

The Veteran was then sent a detailed September 12, 2014 development letter requesting him to provide new and material evidence and notifying him of the critical evidentiary defects necessary to substantiate his claims for service connection.

The Veteran through his attorney perfected his appeal in October 2016.

At the time of the August and November 2011 rating decisions, the reason for the denial remained that the Veteran largely lacked evidence of current disability, and in some cases lacked a nexus between disability and service.  

Although some of the evidence submitted is new, it is not material as it does not relate to an unestablished fact necessary to substantiate the claims, and does not raise a reasonable possibility of substantiating the claims.  Additional evidence submitted since the August and November 2011 rating decisions is cumulative of the evidence of record at the time of the last prior final denials.  We discuss this more specifically below.

Regarding left ventricular hypertrophy, claimed as cardiovascular symptoms and hypertension, although there is evidence of disability, there is still no evidence of a nexus.  For example, even though treatment records showing diagnostic impressions of and treatment for hypertension may be considered new, they are not considered material.  They do not show evidence of a nexus.  At the time of the November 2014 rating decision, the reason for the denial remained because the Veteran’s left ventricular hypertrophy and hypertension were not attributable to service.  The disabilities were not shown to have been incurred or aggravated in service.  For example, the April 2011 VA examiner opined, “Uncontrolled Hypertension with secondary left ventricular hypertrophy is not caused by or a result of or continuation of the treatment complaints indicated during the veterans military service.”  The VA examiner rendered a similar negative nexus opinion for left ventricular hypertrophy.  In other words, there were post service findings that would justify disability.  However, there was still no nexus.  Although some of the evidence submitted is new, it is not material as it does not relate to an unestablished fact necessary to substantiate the claim.  Additional evidence received since the August 2011 rating decision is cumulative of the evidence of record at the time of the last prior final denial.  

Next, regarding chronic condition to account for joint pain, variously claimed as arthritis; degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis; diabetes mellitus, type II; and a sleep disability; there is still no evidence to justify disability.  A review of the particular requirements for service connection is instructive.  In the August 2011 rating decision, the Veteran lacked current disability for these conditions.  New and material evidence sufficient to reopen the claim has not been submitted.  The added evidence, in pertinent part, consists of lay conclusory claims listed by each disability without further explanation.  The Veteran’s November 2017 Brief only lists and discusses three issues, exclusive of these.  There is no new evidence showing that the Veteran has identified several current disabilities.  It follows that there is still no evidence that cures the critical evidentiary defects that existed at the time of the prior decision.  Although the Veteran and his attorney have submitted several lay statements, the Veteran is not shown to be competent to render an opinion diagnosing a chronic disease such as arthritis, degenerative disc disease, or a sleep disability.  His theory of entitlement is unsupported and the medical evidence does not provide a new basis for the claim.  

In particular, although evidence must be presumed credible for purposes of deciding it’s materiality, it does not have to be presumed competent.  And although the Veteran would be presumed credible in stating what a physician had told him for the purpose of determining materiality, such is not the case here.  In that regard, the Veteran was furnished with a September 12, 2014 VCAA letter informing him of the critical evidentiary requirements to substantiate his claim.   Moreover, the Veteran and his attorney received numerous rating decisions and an October 2016 Statement of the Case (SOC).  Several years have passed.  The Board observes that in the absence of proof of a current disability, there can be no valid claim.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, VA has been unable to verify that the Veteran has a chronic condition to account for joint pain, variously claimed as arthritis; degenerative disc disease (DDD), cervical spine, variously claimed as neck issues and arthritis; diabetes mellitus, type II; and a sleep disability.  He continues to offer only conclusory lists of the issues.  The Board therefore finds that the evidence is cumulative of evidence already of record at the time of the prior denial, and the claim is not reopened.  See 38 C.F.R. § 3.156 (a).

Similarly, regarding the thoracic back disability claim, there were no post service findings that would justify disability.  In this regard, the Veteran was sent a September 15, 2011 VCAA letter informing him of the evidence necessary to substantiate his claim.  As of the November 2011 rating decision, the Veteran did not directly reply.  The Veteran did not file an NOD or submit new and material evidence within one year.  The November 2011 rating decision became final.  The Veteran has not submitted new evidence to cure the critical evidentiary defect that existed at the time of the prior final denial.  The October 2014 VA back examination disclosed a single diagnosis of levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, for which the Veteran is already service connected.  His theory of entitlement is unsupported and the medical evidence does not provide a new basis for the claim.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, VA has been unable to verify that the Veteran has a thoracic back disability, and he continues to offer only conclusory statements that he is entitled to service connection.  

The Board therefore finds that the evidence is cumulative of evidence already of record at the time of the prior final denials, and the claims are not reopened.  See 38 C.F.R. § 3.156 (a).   

The preponderance of the evidence is against the claims.  As such, the benefit of the doubt rule is not for application, and the claims must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

8. Whether new and material evidence has been submitted to reopen the claim for service connection for headaches

9. Whether new and material evidence has been submitted to reopen the claim for service connection for a neuropsychological condition

The Board incorporates its discussion from the sections above by reference.

Service connection for headaches and a neuropsychological condition was denied in an August 2011 rating decision.  The Veteran filed a September 2011 Notice of Disagreement (NOD).  He did not perfect his appeal.  That decision is final.  

At the time of the decision, the record included the claims, VA treatment records and the service records.  There was no accepted evidence of disability in service.  There was no evidence of a nexus to service.  

In August 2014 VA received the application to reopen the claims of service connection for several aforementioned disabilities, in addition to increased rating claims.  Upon the receipt of the Veteran’s August 2014 claim, the issues were revisited in a November 2014 rating decision.  The Veteran was informed of the decision and of the right to appeal.  The additional evidence presented from the November 2017 Brief includes medical opinions concerning headaches and an acquired psychiatric disorder.  It also includes lay statements.  Presuming its credibility, the evidence establishes that the Veteran has headaches and what was originally claimed as a neuropsychological condition.  As a lack of evidence supporting the presence of disability in service and a nexus was one of the bases for the previous denial of the claims, this evidence is new and material under 38 C.F.R. § 3.156.

In light of this new and material evidence, the Veteran’s claims of service connection for headaches and a neuropsychological condition are reopened.  





Service Connection

To establish service connection a Veteran must generally show: “(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).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements.  Id.  The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.  Id.  Further, a negative inference may be drawn from the absence of complaints for an extended period.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that 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).  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).



10. Entitlement to service connection for headaches

The Board incorporates its discussion from the sections above by reference.

By way of background, the Service Treatment Records (STRs) include an April 1991 Dental Questionnaire.  The Veteran endorsed drug addiction and alcoholism.   The STRs also include an October 1991 Report of Medical Examination.  The examination disclosed a clinically normal evaluation of the head, face, neck, and scalp, vascular system, and sinuses.  A February 1993 Report of Medical Examination disclosed a clinically normal evaluation of the head, face, neck, and scalp, vascular system, and sinuses.  In a February 1993 Report of Medical History, the Veteran denied frequent or severe headaches. 

Service Personnel Records (SPRs) include an August 1989 Administrative Remarks document showing “drug abuse (marijuana).”  He was placed on a surveillance urinalysis program and also began a Level III program.  

Decades later, an August 15, 2003 private treatment record from Craven Regional Medical Center shows that the Veteran was previously healthy and presented with a one-week history of ongoing headaches.  The headaches were intermittent, and non-continuous.  The private treatment record shows that the initial working diagnosis at an outpatient treatment center was Bell’s Palsy, but treatment providers wanted to be safe because the Veteran had facial numbness and some chest discomfort.  The Board observes that service connection for Bell’s Palsy was denied in an August 2011 rating decision.  

A New Patient Health Questionnaire from December 2003 from East Carolina Internal Medicine shows that the Veteran endorsed a history of headaches.  

A contemporaneous December 2003 Neurological Consultation from East Carolina Internal Medicine shows that the Veteran experienced symptoms related to Bell’s palsy two to three months ago.  His facial weakness was quite severe.  He had a clogged sensation in the left ear.   

One year later, the Veteran filed his claim for service connection for headaches and other disabilities, received by VA in August 2009.

In July 2015 VA received a Report of Accidental Injury in Support of Claim for Compensation or Pension.  It shows that the Veteran suffered an accident aboard the flight deck on the USS Midway in March 1985.  He rolled onto the starboard catwalk and was taken to the medical center for evaluation.  

An October 25, 2016 VA treatment record attached to the November 2017 Brief shows:

He states that he was on the flight deck of the USS Midway in 1985 when he was blown onto the catwalk. He does not remember this event and was unconscious for the following 3 days. He states that the VA lost his records from the incident, so he has had a hard time figuring out exactly what happened. His PCP ordered a brain MRI early this month to evaluate for TBI which it did not show. His primary problem is headache which occur about once per month since the incident. They are throbbing in nature and have been getting more frequent over the last several months. They can last anywhere from 30 minutes to all day. Taking a hot shower and laying in a dark room help; activity makes them worse. He states that he does not want any medications for the headache.

November 2016 VA treatment records show that the Veteran had a history of drug and alcohol abuse.  The Veteran reported that he was required to complete drug rehabilitation in 1989 secondary to narcotic abuse.  He also completed alcoholics anonymous (AA) meetings.

Also in conjunction with the November 2017 Brief, the Veteran through his attorney submitted an October 2017 Headaches Disability Benefits Questionnaire (DBQ).  It shows in part, “When I spoke with the Veteran on 1/4/2017 he told me his headaches began in service.  He said his headaches have continued since service and have increased in both frequency and severity throughout the years.  He reported that he has 3 headaches per week that last 30 minutes to 1.5 hours in duration, or until he is able to fall asleep.  He rated the pain level of the headache at 6-9/10 in severity.”  Dr. H. S. signed the DBQ.  

Next, Dr. H. S. rendered a related medical opinion.  Dr. H. S. concluded, “It is as likely as not that this veteran’s headaches began in service and are both caused and aggravated by his service connected lumbar spine pain and his mental health condition.”  Dr. H. S. cited medical research and evidence in the claims file.

In the November 2017 Brief, the Veteran through his attorney avers, “The Veteran should be awarded direct service connection for major depressive disorder, recurrent, moderate claimed as neuropsychological condition, headaches and an increase rating for sensory finding, right lower extremity (superficial peroneal nerve).”

The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Veteran is competent to report headaches and on which side of the head he feels them. 

The Veteran is competent to relate what he has been told by a professional.  He is competent to report when he began receiving treatment for headaches, and when Bell’s Palsy was first identified.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The Veteran’s own lay opinions as to the diagnosis and cause of a headaches are not probative evidence, although the Veteran’s observed symptoms described may be useful to an expert in evaluating whether the Veteran has a disability and in determining the etiology thereof.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  

The most probative evidence are the contemporaneous treatment records, including the STRs, and the private treatment records from after discharge.  First, the STRs are clinically normal for the head, face, neck, and scalp, vascular system, and sinuses.  In the February 1993 Report of Medical History, the Veteran denied frequent or severe headaches.  Several years later, a private treatment record identified headaches for the past week.  They were intermittent and non-continuous.  They had been attributed to Bell’s Palsy.  The Board assigns substantial probative weight to the contemporaneous treatment records.  

In contrast, the Board affords diminished probative weight to the 2017 findings of Dr. H. S.  First, the October 2017 shows that it was based upon an “interview” with the Veteran, and does not show a comprehensive in-person clinical examination.  It also cites general medical articles, which are not based upon the circumstances surrounding the Veteran’s specific conditions.  Dr. H. S. rendered a medical opinion for both direct and secondary service connection, “It is as likely as not that this veteran’s headaches began in service and are both caused and aggravated by his service connected lumbar spine pain and his mental health condition.”  Importantly, the findings are largely based upon the Veteran’s own lay reporting, which itself is inconsistent with the contemporaneous treatment records, including the STRs, and are therefore afforded diminished probative weight.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  Therefore, the findings pale into insignificance when compared to the contemporaneous medical evidence of record.  

Additional causal evidence against the claims, and while not dispositive, is the lapse of so many years between discharge and the first documented medical complaints of headaches approximately two decades after discharge.  Indeed, at one point the Veteran’s own lay history placed the onset of headaches many decades after discharge, in August 2003.  This multi-year gap after service provides highly probative evidence against these claims.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that “evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran’s health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service”).

Therefore, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entity in service.  It was not manifest in service and is not attributable to service.  There is no probative evidence to the contrary.  We have considered the absence of STRs (although not SPRs), from the Veteran’s first period of service.  While competent to report what he has been told by his physician and to report headaches, the Veteran’s own lay opinion regarding identifying a potential chronic disease entity pales in probative weight when compared to the objective medical evidence of record.  We afford the most probative weight to the contemporaneous treatment records showing the remote onset of headaches many years after discharge.  We also note other factors.  Consequently, service connection for headaches is not warranted.  

In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim.  As such, the benefit of the doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



11. Entitlement to service connection for an acquired psychiatric disorder, claimed as neuropsychological condition, variously diagnosed as major depressive disorder, recurrent, moderate 

The Board incorporates its discussion from the sections above by reference.

By way of background, a February 1993 Report of Medical Examination disclosed a clinically normal psychiatric evaluation.  A February 1993 Report of Medical History shows that the Veteran denied “frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort.”  It shows notes of drug dependence in 1988 and drug addiction.  

Years later, private treatment records from Tampa Bay Acupuncture Clinic show that the Veteran presented with loss of focus.  A March 2008 private treatment record shows, “Patient states he has been feeling out of balance, poor sleeping, anxious and tired,” The assessment was hypertension, loss of focus, and poor sleeping.  The treatment plan consisted of, “Acupuncture treatment.”  

VA treatment records submitted by the Veteran and his attorney show that in August 2015 the Veteran reported depression for several years due to financial strain.

A November 4, 2016 VA treatment record shows that the Veteran was in a depressed mood and gave his guns to his neighbor.  He had passive suicidal ideation and anxiety, but no homicidal or suicidal ideation.  The Veteran reported a history of drug abuse and undergoing drug and alcohol rehabilitation.  

A November 7, 2016 VA treatment record shows diagnostic impressions of MDD, PTSD, and marijuana use.  It shows “likely that his significant irritability and anger is related to PTSD, though MDD may be contributing some component as well.”  

The Board observes that a July 2017 claim was submitted for “Mental Health Conditions.”  

The Veteran was afforded an August 2017 VA examination with medical opinion.  The VA examiner rendered a negative nexus opinion.  

An October 2017 Mental Health Conditions Disability Benefits Questionnaire (DBQ) from Dr. H. G. shows that the Veteran has major depressive disorder (MDD), recurrent, moderate.  In a related October 2017 private medical opinion, Dr. H.-G. opined, “It is the opinion of this expert that Mr. [Veteran] suffers from major depressive disorder [that] more likely than not began in military service, continues uninterrupted to the present, is aggravated by his levoscoliosis with degenerative disc disease of the lumbar spine, deceased (sic) sensory finding or right lower extremity and bilateral hearing loss.”  She based this upon a review of the claims file and relevant medical literature.  

Buddy statements submitted with the November 2017 Brief from the Veteran’s siblings show that the Veteran has suffered from mental health problems ever since he was in the Navy, and these issues have progressively worsened over time.  

In the November 2017 Brief, the Veteran through his attorney avers that he is entitled to direct service connection for major depressive disorder, recurrent, moderate.   

The Veteran is competent to report feelings of low mood, anxiety and anger. Layno v. Brown, 6 Vet. App. 465, 469 (1994)

The Veteran is competent to relate what he has been told by a professional.  He is competent to report when he began receiving treatment for depression, later identified as major depressive disorder and PTSD, and when they were first identified.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

The Veteran’s siblings submitted buddy statements describing a history of worsening symptoms back to the Veteran’s time in service. The Board finds their statements to be credible with respect to observing the onset of changes in the Veteran’s behavior, and assigns them substantial probative weight.

The most probative evidence is the findings of the October 2017 Mental Health Conditions DBQ, the medical opinion of the October 2017 private examiner, and the credible buddy statements.  First, although major depressive disorder was not initially formally identified in prior private treatment records, Dr. H.-G. rendered a positive nexus opinion.  She based this upon a discussion of the evidence in the claims file, a mental status examination, and current medical literature.  Dr. H.-G. noted the Veteran’s siblings’ prior reports of the Veteran undergoing a change during service.  He became anxious, irritable, less self-confident, and self-medicated with alcohol.  He was socially withdrawn and on guard.  He continued self-medicating even after discharge.  The Board assigns substantial probative weight to the October 2017 private medical opinion. 

In contrast, the August 2017 VA examination with negative nexus opinion is largely a recitation of the claims file.  The VA examination disclosed a diagnostic impression of Unspecified Depressive Disorder.  The VA examiner noted that the post-service record shows symptoms related to depression.  While it demonstrates that the evidence was reviewed, and references alcoholism, it does not include complete reasons and bases to support the negative nexus opinion, and is therefore entitled to diminished probative weight.  

We have also considered the STRs.  To the extent that the STRs show a clinically normal psychiatric evaluation with no reported symptoms upon discharge, the Board has considered this.  There are notations of drug and alcohol abuse dating back to 1988, and ongoing reports of this.  The Veteran describes drug and alcohol use as self-medication.  Regarding the delay in identifying depression until 2015, and major depressive disorder (MDD) until 2016, the Board notes that the Veteran’s siblings have competently and credibly reported symptoms described at times as anger and isolation.  They reported that these began in the Navy, and have occurred for years.  The Veteran presented for various treatment for a decade before MDD was diagnosed, reported as anxiety and being tired.  This is consistent with the findings of the October 2017 private DBQ showing that the Veteran keeps to himself and feels anxious and nervous.  In short, the evidence is not entirely inconsistent with the continuously reported symptoms, and with a remote formal identification of major depressive disorder after discharge. 

In short, the most probative evidence is the findings of the October 2017 Mental Health Conditions DBQ, the related medical opinion of the October 2017 private examiner, and the credible buddy statements.  In diagnosing major depressive disorder, recurrent, moderate, Dr. H.-G. considered the Veteran’s lay history and symptoms, and provided detailed reasons and bases.  At the very least, the evidence of record is in relative equipoise as to the onset of the Veteran’s major depressive disorder.  We have also considered our heightened duty under O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran’s major depressive disorder, recurrent, moderate was incurred in service.  He has had major depressive disorder continuously since service.  The Veteran is therefore entitled to the benefit of the doubt.  See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017).  Accordingly, service connection for major depressive disorder, recurrent, moderate is warranted.  38 C.F.R. § 3.303 (d).



12. Entitlement to service connection for a knee disability

The Board incorporates its discussion from the sections above by reference.  This claim is before the Board on appeal of an original claim for service connection received by VA in August 2014. 

By way of background, a February 1993 Report of Medical Examination disclosed a clinically normal evaluation of the lower extremities, spine, other musculoskeletal, neurologic system, and lower extremities.  A February 1993 Report of Medical History shows that the Veteran denied “trick” or locked knee, arthritis, rheumatism, or bursitis, bone, joint or other deformity, and cramps in the legs.”

An October 2014 VA Peripheral Nerve Conditions examination disclosed clinically normal strength in the bilateral knees.  Sensation was clinically normal.  The Veteran was evaluated for a peroneal nerve disorder.  The toes on his right foot would get numb.  It shows, “Veteran denies any other symptoms.”  

The Veteran filed his timely Notice of Disagreement (NOD) in January 2015. 

He perfected his appeal in October 2016, along with the other issues currently on appeal before the Board.

Next, an October 4, 2017 private medical opinion from Dr. H. S. related to the Veteran’s decreased sensory finding, right lower extremity involving the superficial peroneal nerve shows that there is a locking sensation of the ankle and knee.  The Veteran reported a feeling of tingling and cramping in the foot.  Dr. H. S. opined that the Veteran’s description of these conditions is “congruent” with the October 2014 VA examination findings, which also implicitly attributed the Veteran’s subjective complaints to his right lower extremity disability (discussed in the increased rating section below).

The Veteran contends that he is entitled to service connection for a knee disability.  

The Board finds the lack of objective medical evidence as to the existence and diagnosis for any current knee disability to be the highly probative, as shown by the silence in the ongoing VA and private treatment records.  The October 2014 VA examiner attributed the Veteran’s reported right leg symptoms pain to a peripheral nerve disorder, for which he is service-connected.  It shows, “Veteran denies any other symptoms.”  The Veteran also reported symptoms and a theory of entitlement consistent with these findings.  The October 2017 private medical opinion shows findings that were “congruent” with the findings of the October 2014 VA examiner.  There is no probative evidence to the contrary.  The Board observes that neither the Veteran nor his attorney have averred otherwise or specifically requested any additional development of this issue.

In this regard, the Veteran was sent a September 12, 2014 development letter, and the Veteran and his attorney have had several years to show evidence of disability.  “The duty to assist is not always a one-way street.  If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  We note that there are only three enumerated issues discussed by the Veteran’s attorney in the November 2017 Brief, exclusive of a knee disability.  In sum, we find the lack of objective medical evidence as to the existence and diagnosis for any current knee disability to be probative.  Consequently, service connection for a knee disability is not warranted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Although the Veteran has periodically referenced service in the Southwest Asia theater of operations during the Persian Gulf War, this has not been conceded by VA.  There is also no disability due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses.  See 38 C.F.R. § 3.317.  Neither the Veteran nor his attorney have alleged otherwise in the November 2017 Brief.

Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim.  As such, the benefit of the doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



Increased Rating

Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the disability ratings have not been previously staged.  As discussed below, uniform evaluations are still warranted.



13. Evaluation of levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, claimed as low back condition, currently evaluated as 10 percent disabling

The Board incorporates its discussion from the sections above by reference.

The Veteran asserts that he has pain in his back that affects his mobility.

Levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, claimed as low back condition is currently evaluated at 10 percent disabling pursuant to Diagnostic Code (DC) 5242, which pertains to loss of motion of the cervical spine. 38 C.F.R. § 4.71a (2017).  This DC provides that the provisions of Code 5003, for degenerative arthritis generally, are also potentially applicable; however, as a compensable evaluation is assigned under the Code specific to the affected body part, Code 5003 is not applied. 38 C.F.R. § 4.71a, Code 5003.

The Schedule for Rating Criteria mandated that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine.  This General Rating Formula assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. 

The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, 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 provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 

A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 

A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.

A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code.  Note (2) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (5) shows that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. 

The criteria for Intervertebral Disc Syndrome (IVDS) also potentially apply.  Under the rating criteria, IVDS may be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or otherwise based upon the frequency and severity of its incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  The specific formula for IVDS provides: 10 percent with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; 20 percent with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; 40 percent with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks,; and 60 percent with incapacitating episodes with a total duration of at least 6 weeks during the past 12 months, the assignment of a maximum 60 percent rating is warranted.  

The Board must also consider a Veteran’s pain, swelling, weakness, and excess fatigability when determining the appropriate disability rating for a disability using the limitation of motion diagnostic codes.  38 C.F.R. §§ 4.40, 4.45; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995).  

By way of background, the Veteran was afforded an October 2014 VA back examination.  The Veteran reported, “My back continuously gets worse, soreness, mobility, everything just hurts, and my toes go numb in my right foot from time to time, that’s about it.”  The Veteran denied any other symptoms associated with the back, and denied any flare ups.  Upon clinical examination, forward flexion ended at 90 degrees or greater in the clinically normal range, there was no objective evidence of painful motion, extension was clinically normal, lateral flexion was clinically normal for both the right and left, and lateral rotation was clinically normal for both the right and the left.  For right lateral rotation and left later rotation, pain began at 30 degrees or greater in the clinically normal range.  The results were substantially the same after repetitive use testing.  He had pain on movement, and localized spinal and paraspinal lumbar tenderness to palpation.  There was no guarding resulting in abnormal gait, and no muscle spasm.  There was no radiculopathy.  There was no ankylosis, and no Intervertebral Disc Syndrome (IVDS).  Pain, weakness, fatigability, or incoordination limited functional ability after repetitive use due to pain.  There is a notation attributing decreases sensation the right lower extremity to service-connected RLE decreased sensory finding peroneal nerve disorder.  

Next, the November 2014 rating decision granted an increased rating to ten percent effective the date of the Veteran’s claim for an increased evaluation, August 4, 2014.  The Veteran filed his Notice of Disagreement (NOD) in January 2015.  He perfected his appeal in October 2016 along with the other issues presently before the Board.

The Veteran asserts that he is entitled to an increased rating for levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, claimed as low back condition, which is currently rated as 10 percent disabling under Diagnostic Code 5242.  The current rating contemplates localized tenderness not resulting in abnormal gait or abnormal spinal contour, with combined range of motion of the thoracolumbar spine within normal range, forward flexion of the thoracolumbar spine within normal range, and painful motion upon examination.  A higher evaluation is not warranted unless the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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.  That is not the case here, as the most probative evidence does not show that his symptoms are accompanied by such limited motion or incapacitating episodes.

Here, the most probative evidence are the findings of the October 2014 VA examiner, presenting a detailed picture of the Veteran’s disability.  Levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, claimed as low back condition is most closely approximated by the current 10 percent rating based upon localized tenderness not resulting in abnormal gait or abnormal spinal contour, with combined range of motion and forward flexion of the thoracolumbar spine within normal range, although painful upon examination.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242.  Objective medical evidence did not show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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.  There is no ankylosis of the entire thoracolumbar spine or, intervertebral disc syndrome with incapacitating episodes.  Indeed, at the October 2014 VA examination, forward flexion was to 90 degrees even after repetitive use, with no incapacitating episodes and no IVDS.  

Alternatively, in order to substantiate a higher evaluation, the evidence must indicate muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  Here, abnormal gait not been assessed.  

The provisions of 38 C.F.R. §§4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995), have been considered and do not result in a higher rating.  There is no probative evidence to the contrary.  There is no doubt to resolve.  Consequently, an evaluation in excess of 10 percent for levoscoliosis with degenerative disc disease (DDD) of the lumbar spine, claimed as low back condition is not warranted.

In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim.  As such, the benefit of the doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



14. Evaluation of decreased sensory finding, right lower extremity (superficial peroneal nerve), currently assigned a noncompensable rating

The Board incorporates its discussion from the sections above by reference.

The Veteran contends that he is entitled to an increased rating for sensory finding, right lower extremity (superficial peroneal nerve), currently assigned a noncompensable rating.

Decreased sensory finding, right lower extremity (superficial peroneal nerve), is currently assigned a noncompensable rating under Diagnostic Code (DC) 5242-8522, which pertains to the neurologic system.  38 C.F.R. § 4.124a. (2017).  

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating.  DC 5242 is described above.  DC 8522 is for neurological conditions, and specifically paralysis.  

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis.  The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  38 C.F.R.  § 4.123. 

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when bilateral the rating should include the application of the bilateral factor.  38 C.F.R. § 4.124a.

Paralysis of the Musculocutaneous nerve (superficial peroneal) nerve is rated under Diagnostic Code 8522.  When there is mild incomplete paralysis, then a 0 percent rating is assigned.  When there is moderate incomplete paralysis, then a 10 percent rating is assigned.  When there is severe incomplete paralysis, then a 20 percent rating is assigned.  When there is complete paralysis; eversion of foot weakened of this nerve, a 30 percent rating is assigned. 

By way of background, the Veteran was afforded an October 2014 VA peripheral nerves examination.  Upon clinical examination, there was no constant pain in the right lower extremity, one indication of “none” and another of “moderate” for intermittent (usually dull) pain in the right lower extremity, and mild numbness.  Sensation was decreased in the right foot/toes (L5).  Gait was normal.  There was mild incomplete paralysis of the musculocutaneous (superficial peroneal) nerve.  

Included with the November 2017 Brief, the Veteran and his attorney submitted an October 2017 private medical opinion from Dr. H. S.  It shows that the Veteran was interviewed by Dr. H. S.  The Veteran reported that he experiences numbness, tingling and cramping of the foot, a locking sensation of the ankle and knee and pins and needles in his thigh frequently.  This will even wake him up at night.  The Veteran reported that if he walks 100 to 150 yards, he will have to sit for at least 30 minutes before he can walk again due to pain and numbness in the right lower extremity.  While at home, he sits in a recliner to relieve his pain and discomfort.  Dr. H. S. ultimately opined, “I agree with the findings of the C&P examinations and feel Mr. [Veteran’s] description of his pain and limitation involving his right lower extremity are congruent with the exam findings.  The veteran is limited in his ability to sit, stand and walk.  While seated, he should have the option of elevating his legs and standing/moving about at will.”  

In the November 2017 Brief, the Veteran through his attorney contends that he is entitled to an increased rating (compensable rating) for decreased sensory finding, right lower extremity (superficial peroneal nerve).  In support of this claim, they specifically cite the October 2014 VA examination and October 2017 medical opinion from Dr. H. S showing “congruent” findings.  The current noncompensable rating contemplates mild incomplete paralysis.  A compensable evaluation is not warranted unless the evidence shows nerve damage that is moderate.

The Veteran is competent to report tingling, numbness, and difficulty walking due to this.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

The most probative evidence is the findings of the October 2014 VA examination and October 2017 private medical opinion from Dr. H. S.  The October 2014 VA examination ultimately found in relevant part “mild” impairment for the musculocutaneous (superficial peroneal) nerve.  There was an interview conducted with Dr. H. S., as opposed to an in-person medical examination.  Regardless, Dr. H. S. reviewed the claims file and concluded, “I agree with the findings of the C&P examinations and feel Mr. [Veteran’s] description of his pain nad limitation involving his right lower extremity are congruent with the exam findings.”  We assign significant probative weight to these findings.

Here, the most probative evidence shows that the Veteran’s impairment is no more than “mild,” resulting in a noncompensable rating.  Although we acknowledge the Veteran’s symptoms and sincere belief that he is entitled to a compensable evaluation, we are bound by the rating criteria for this specific disability.  In other words, the weight of the evidence is against a finding of moderate incomplete paralysis.  The Veteran has been afforded a VA examination and a more recent private medical opinion from a physician has been considered, showing a similar degree of impairment.  The Board further observes that VA satisfied its overall duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician’s assistant.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  There is no doubt to resolve.  Consequently, a compensable rating for decreased sensory finding, right lower extremity (superficial peroneal nerve) is not warranted.



15. Evaluation of bilateral hearing loss disability, currently assigned a noncompensable rating

The Board incorporates its discussion from the sections above by reference.

The Veteran contends that he is entitled to a compensable rating for bilateral hearing loss disability.  DC 6100.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993). VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service.  Id.

Under the applicable criteria disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz.

The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  See 38 C.F.R. § 4.85.  The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent.  See 38 C.F.R.  § 4.85.

Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing.  An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies of: 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86 (a), (b). 

By way of background, the Veteran was most recently afforded a June 2016 VA examination.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follow:

 

 	 	 	HERTZ	 	 

 	1000	2000	3000	4000	Average

RIGHT	55	30	20	20	31.25

LEFT	40	25	20	15	25



The average decibel loss is 31.25 in the right ear.  The average decibel loss is 25 in the left ear.  

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear.  

The VA examiner opined that puretone test results are valid for rating purposes.  The use of speech discrimination score was appropriate for this Veteran

The VA examiner noted sensorineural hearing loss in the frequency of 500-4000 Hz for both ears.  

The Board has considered the data obtained from the three available frequencies and their related puretone averages.  From Table VI of 38 C.F.R. § 4.85, Roman Numeral I is derived for the right ear and Roman Numeral I for the left ear when intersecting the percent of speech discrimination row with the puretone threshold average column.  A 0 percent evaluation is derived from Table VII by intersecting row I, the right ear, with column I, the left ear.  The evaluation for hearing loss is based on objective testing.  Higher evaluations are assigned for more severe hearing impairment.  Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.  The Board also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment.

The Veteran contends that the Veteran’s hearing acuity warrants a compensable evaluation.

The Veteran is competent to report difficulty hearing and ringing in his ears.  The Board finds these reports credible.  The Veteran is competent to provide evidence of that which he experiences, including a history of noise exposure and difficulty hearing.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Here, there are impressions or diagnoses of hearing loss.  The Veteran is competent to relate such facts.

Nevertheless, the Veteran’s lay contentions regarding the severity of bilateral hearing loss disability are outweighed by the more probative, objective medical evidence.  The Board finds the results of the June 2016 audiological examination to be the most probative evidence of record.  VA recognizes the Veteran’s belief that he is entitled to a compensable rating for bilateral hearing loss disability.  However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings.  This criteria measures hearing acuity directly in a controlled laboratory environment.  There are no probative objective audiometric evaluations to the contrary.  See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.  Consequently, a compensable rating for bilateral hearing loss disability is not warranted.

Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims.  As such, the benefit of the doubt rule is not for application, and the claims must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

Michael Pappas

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	B. Bodi, Associate Counsel