Citation Nr: 18144667 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-02 709 DATE: October 25, 2018 ORDER Entitlement to service connection for hypertension (claimed as high blood pressure) is denied. Entitlement to a rating in excess of 10 percent for bilateral tinnitus is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for erectile dysfunction (also claimed as vasectomy) is remanded. Entitlement to service connection for Hepatitis C is remanded. Entitlement to service connection for a liver disorder is remanded. Entitlement to service connection for thigh scarring as secondary to Hepatitis C is remanded. Entitlement to service connection for scars from injections associated with Hepatitis C is remanded. Entitlement to service connection for headaches, including migraines is remanded. Entitlement to service connection for a cognitive disorder to include Alzheimer's disease (claimed as a psychological disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial rating in excess of 10 percent for right rotator cuff tendonitis is remanded. Entitlement to a rating in excess of 10 percent for hemorrhoids is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence of record is against a finding that the Veteran's hypertension began in service, is otherwise related to service, or manifested to a compensable degree within one year of separation from active duty. 2. The Veteran’s tinnitus is perceived bilaterally; the 10 percent rating currently in effect is the maximum rating authorized under Diagnostic Code 6260; separate ratings for each ear are not authorized. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112(a)(1), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The claim for a rating greater than 10 percent for tinnitus is without legal merit. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.87, DC 6260 (2018); Smith v. Nicholson, 19 Vet. App. 63 (2005) rec’d 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to March 1979. These matters are on appeal from July and October 2014 as well as April 2015 rating decisions. In an April 2018 rating decision, the Regional Office (RO) denied the Veteran’s claims of entitlement to service connection for carpel tunnel syndrome of the bilateral left and right upper extremities. The Veteran filed a notice of disagreement (NOD) in May 2018. The RO acknowledged receipt of this disagreement in correspondence to the Veteran dated May 8, 2018. To date, the RO has not yet issued a Statement of the Case. As the RO has acknowledged receipt of the Veteran’s notice of disagreement, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. Therefore, the Board will not assume jurisdiction of these issues for the sole purpose of remanding them for a SOC. Service Connection Entitlement to service connection for hypertension is denied Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s VA treatment records indicate a diagnosis of hypertension. The Veteran indicates that his hypertension had onset in, or is otherwise related to his period of service. Service treatment records do not show any indication that hypertension existed at that time. On a September 1978 dental patient medical history, the Veteran reported that he did not have a heart condition or high blood pressure. On the Veteran’s November 1978 separation report of medical examination, the Veteran denied ever having or currently having, shortness of breath, pain or pressure in chest, palpitation or pounding heart, and high or low blood pressure. On accompanying separation examination, the Veteran’s blood pressure reading was 110/64 and the Veteran was noted to have a “normal” clinical evaluation of the heart and vascular system. There is no objective indication in the file demonstrating in-service onset of elevated blood pressure or hypertension. For veterans who served 90 days or more after December 31, 1946, the chronic diseases listed in 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309(a), including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101 (3), 1112(a)(1) (2012); 38 C.F.R. §§ 3.307 (a), 3.309(a) (2018). In this case, there is no indication that the Veteran’s hypertension manifested to a compensable degree within his first post-service year. Hypertension is rated under Diagnostic Code 7101, which provides for a 10 percent rating for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or where an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. 38 C.F.R. § 4.104. VA treatment records dated in September 2001 included blood pressure readings of 152/95 and 131/87. An October 2001 record noted that the Veteran had an elevated blood pressure reading in September 2001 without a diagnosis of hypertension. A May 2002 record included a diagnosis of hypertension. An August 2003 record noted a history of hypertension being diagnosed four years prior, which suggests that he was first diagnosed in 1999. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension. As noted above, the record is devoid of complaints or treatment related to hypertension until 1999, approximately 20 years after the Veteran's discharge from service. The only positive evidence indicating that his high blood pressure began in or is related to service are the Veteran’s lay statements to that effect. In this regard, the Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). In this case, however, he specifically denied ever having high blood pressure on his November 1978 separation examination. Additionally, in August 2003, he provided a history of his hypertension being diagnosed four years prior. As to the Veteran's beliefs that his high blood pressure is related to his period of service, the question of causation of such current hypertension extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. See Jandreau supra. In this case, the Veteran does not have the requisite training or expertise to diagnose the cause of his high blood pressure disorder and there is no competent medical evidence relating the Veteran’s hypertension to his service. Thus, for the reasons discussed above, the Board finds that the evidence is against a finding that the Veteran’s hypertension had onset in, or is otherwise related to the Veteran’s active service; nor did hypertension manifest to a compensable (10 percent) degree within his first post-service year. The benefit sought on appeal is therefore denied on both a direct and presumptive basis. Increased Rating Entitlement to a rating in excess of 10 percent for bilateral tinnitus is denied. During his April 2014 VA examination, the Veteran described his tinnitus as occurring in the left ear only and a couple of times a week for 5-10 minutes. In more recent VA treatment records dated in September 2018, he described his tinnitus as constant and bilateral, although it was louder in the left ear. The present appeal arises from the Veteran’s disagreement with the amount of the assigned rating. The regulations pertaining to the evaluation of diseases and injuries of the ears were revised effective June 10, 1999. See 64 Fed. Reg. 25, 202 (1999) (codified at 38 C.F.R. § 4.85 - 4.87 (2002)). The regulation was again revised in May 2003, effective June 13, 2003. See 68 Fed. Reg. 25,822 (2003). The June 13, 2003 revision was undertaken, in part, to clarify existing VA practice that only a single 10 percent evaluation is assigned for recurrent tinnitus pursuant to DC 6260, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note 2 (2018). In this case, the Veteran filed his claim after the June 2003 change that clarified that only a single 10 percent evaluation is assigned for recurrent tinnitus pursuant to DC 6260, whether the sound is perceived as being in one ear, both ears, or in the head. Therefore, no more than a single 10 percent rating is permissible for the Veteran’s tinnitus. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming the VA’s long-standing interpretation of pre-June 13, 2003 DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral). In light of the foregoing, the Board concludes that DC 6260 precludes separate 10 percent schedular ratings for bilateral tinnitus. As such, the Veteran’s claim for an evaluation greater than 10 percent for service-connected tinnitus must be denied. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, is remanded. The Veteran claims that his diabetes mellitus is related to service. A review of the Veteran’s service treatment records show that his glucose levels were tested in March 1976 and show changes from 107 to 117. A VA examination is necessary to address the Veteran’s contentions and whether or not such changes in his glucose levels were indicative of early signs and symptoms of diabetes mellitus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for erectile dysfunction (also claimed as vasectomy) is remanded. The Veteran claims that his erectile dysfunction is related to his service. To date, the Veteran has not been afforded a VA examination to address his contention. McLendon, supra. The examiner evaluating the claimed erectile dysfunction should address, service treatment records documenting a strained groin muscle, pain in the testicle, orchitis, epididymitis, discharge from the urethra, positive GC smear/G stain for GNID, and, on November 1978 separation reports of medical history and examination, a left varicocele as well as post-service treatment records diagnosing the Veteran with erectile dysfunction. 3. Entitlement to service connection for Hepatitis C and a liver disorder, as well as thigh scarring, and scars from injections as secondary to Hepatitis C are remanded. The Veteran claims that his Hepatitis C and liver disorders are related to his service. To date, the Veteran has not been afforded a VA examination to address his contentions. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examiner evaluating the claimed Hepatitis C and liver disorder should address service treatment records documenting the Veteran’s belief that he had hepatitis in June 1975, and post-service treatment records showing Hepatitis C and cirrhosis of the liver. The examiner should also opine as to whether or not the Veteran has a liver disorder, scarring on his thigh, and injection site scars that were caused or aggravated by his Hepatitis C. 4. Entitlement to service connection for headaches, including migraines is remanded. The Veteran indicates that his migraines began in or are otherwise related to his service. The Veteran’s service treatment records show multiple complaints of headaches and in October 1978 he was treated for a slight concussion. VA treatment records show treatment for headaches and complaints of migraines. To date, the Veteran has not been afforded a VA examination to address his contention. McLendon, supra. 5. Entitlement to service connection for a cognitive disorder to include Alzheimer's disease (claimed as a psychological disorder is remanded. In June 2013, the Veteran filed a claim for psychological conditions. In his December 2014 NOD, he expanded his psychological claim to include a cognitive disorder/Alzheimer’s disease. VA treatment records including a December 2015 record listed the Veteran’s relevant active problems as cognitive disorder, other signs and symptoms involving cognition, and dementia of the frontal lobe. An October 2018 VA treatment record included a diagnosis of depression. A December 2014 VA neuropsychological evaluation noted that the Veteran felt depressed due to increasing health problems and that his (nonservice-connected) diabetes, hepatitis, sleep apnea, and cirrhosis could be adversely affecting his cognitive function. In January 2017, Dr. H.H.G., a Ph.D. in Counseling Psychology opined that the Veterans bilateral tinnitus, hemorrhoids, right rotator cuff tendonitis, and left ear hearing loss more likely than not caused his depressive disorder. A March 2018 VA mental health nursing home record noted that the Veteran hit his head while he was in the military and was unconscious. The Veteran reported that he blacked out and described feeling that he was in a dark tunnel. He reported that this was due to his frontal lobe syndrome. Service treatment records show that he was treated for a slight concussion in October 1978. As the current nature and etiology of the Veteran’s claimed disorder remains unclear, A VA examination is necessary. McLendon, supra. 6. Entitlement to service connection for sleep apnea is remanded. The Veteran indicated that his sleep apnea is related to service and VA treatment records include a diagnosis of hypersomnia with sleep apnea. More recently, in August 2017, Dr. M.B. opined that it was as likely as not that the Veteran’s depressive disorder aided in the development of and permanently aggravated his obstructive sleep apnea. To the extent that the Veteran’s sleep apnea is related to his depressive disorder, the Veteran’s claim for service connection for a psychiatric and cognitive disorder is currently being remanded and sleep apnea on a secondary basis is intertwined with that issues. Regarding sleep apnea on a direct basis, the Veteran has not been afforded a VA examination to address his contention. McLendon, supra. 7. Entitlement to an initial rating in excess of 10 percent for right rotator cuff tendonitis is remanded. Since the Veteran was last examined by VA in April 2015, the Court recently held that the final sentence of 38 C.F.R. 38 U.S.C. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In order for an examination report to be adequate, it must include testing on active motion, passive motion, weight-bearing, and non-weight bearing. Id. Furthermore, in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court recently held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner. Therefore, on remand, the examiner must address the requirements found in Correia and Sharp. 8. Entitlement to a rating in excess of 10 percent for hemorrhoids is denied. A March 2014 record reflects that a VA examination was scheduled for VA audiology and rectum and anus examinations at the Charleston VA Medical Center (VAMC). A March 2014 Report of General Information revealed that the Charleston VAMC indicated that it was the incorrect facility. The Veteran’s mailing address was updated. The VA employee noted that the examinations scheduled at the Charleston VAMC were cancelled and then scheduled at the Columbia VAMC. In the July and October 2014 rating decisions, the RO noted that the Veteran failed to report to the scheduled VA examination for his hemorrhoids and denied the claim for a higher rating. See 38 C.F.R. § 3.655(b); see also Turk v. Peake, 21 Vet. App. 565 (2008). In the evidence section in the January 2016 statement of the case, the RO noted “VA Examination, dated April 9, 2014 and notice that you did not report for the hemorrhoids examination.” It is unclear whether the Veteran was scheduled for his hemorrhoids examination on April 9, 2014 or a different date; notably, the Veteran did in fact appear for a VA audiological examination at the Columbia VAMC on that date. Neither a copy of the letter informing the Veteran of the scheduled examination or an appointment confirmation is associated with the record. Given the confusion as to the Veteran’s correct address and the lack of documentation regarding the Veteran’s scheduled appointment, the Board finds that the Veteran should be afforded another opportunity to attend a VA hemorrhoids examination. 9. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. The matter of TDIU is inextricably intertwined with the currently remanded claims for service connection and increased evaluations. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran’s assistance, obtain copies of any pertinent records and add them to the claims file. 2. Schedule the Veteran for an appropriate VA examination to address the claimed diabetes mellitus, type II. The electronic record, including a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical history. All indicated tests and studies should be undertaken. The examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus had its onset in, or is otherwise related to service, to include whether changes in the Veteran’s glucose levels from 107 to 117 in March 1976 were indicative of early manifestations of diabetes mellitus. A complete rationale should be given for all opinions and conclusions expressed. 3. Schedule the Veteran for an appropriate VA examination to address the claimed erectile dysfunction. The electronic record, including a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical history. All indicated tests and studies should be undertaken. The examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction had its onset in, or is otherwise related to service, to include service treatment records documenting a strained groin muscle, pain in the testicle, orchitis, epididymitis, discharge from the urethra, positive GC smear/G stain for GNID, and, on November 1978 separation reports of medical history and examination, a left varicocele. A complete rationale should be given for all opinions and conclusions expressed. 4. Schedule the Veteran for an appropriate VA examination to address the claimed Hepatitis C, liver disorder, thigh scarring, and injection site scars. The electronic record, including a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical history. All indicated tests and studies should be undertaken. The examiner is asked to furnish an opinion with respect to the following questions: a) The examiner should confirm the diagnosis of Hepatitis C and any liver disorder, thigh scarring, and injection site scars. b) For any currently diagnosed Hepatitis C and liver disorder, the examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to service, to include in-service documentation of the Veteran’s beliefs that he had hepatitis in June 1975. c) If Hepatitis C began in or is otherwise related to service, then the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's liver disorder, thigh scarring, and/or injection site scars were caused or aggravated beyond natural progression by Hepatitis C. A complete rationale should be given for all opinions and conclusions expressed. 5. Schedule the Veteran for an appropriate VA examination to address the claimed migraines/headache disability. The electronic record, including a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical history. All indicated tests and studies should be undertaken. The examiner is asked to furnish an opinion with respect to the following questions: a) The examiner should confirm the diagnosis of any headaches, including migraines. b) For any currently diagnosed headaches, including migraines, the examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to service, to include in service documentation of complaints of headache (in February and October 1976) and a concussion in October 1978. A complete rationale should be given for all opinions and conclusions expressed. 6. Schedule the Veteran for an appropriate VA examination to address the claimed psychiatric psychological disorder and cognitive disorder, including Alzheimer’s disease. The electronic record, including a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical history. All indicated tests and studies should be undertaken. The examiner is asked to furnish an opinion with respect to the following questions: a) The examiner should identify all psychological and cognitive disorders, including dementia of frontal lobe and Alzheimer’s disease. b) For any currently diagnosed psychological and cognitive disorders, including dementia of frontal lobe and Alzheimer’s disease, the examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to service, to include in service documentation of a concussion in October 1978. c) Notwithstanding the above, the examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychological or cognitive disorder is caused or aggravated beyond its natural progression by a service-connected disability (the Veteran is currently service-connected for bilateral tinnitus, hemorrhoids, right rotator cuff tendonitis, and left ear hearing loss). The examiner should comment on whether or not his opinion would change if the Veteran were service-connected for Hepatitis C (and any associated scarring), a liver disorder, headaches, erectile dysfunction, and sleep apnea. A complete rationale should be given for all opinions and conclusions expressed. 7. Schedule the Veteran for an appropriate VA examination to address the claimed sleep apnea. The electronic record, including a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical history. All indicated tests and studies should be undertaken. The examiner is asked to furnish an opinion with respect to the following questions: a) The examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea had its onset in, or is otherwise related to service. b) Notwithstanding the above, the examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused or aggravated beyond its natural progression by a service-connected disability (the Veteran is currently service-connected for bilateral tinnitus, hemorrhoids, right rotator cuff tendonitis, and left ear hearing loss). The examiner should comment on whether or not his opinion would change if the Veteran were service-connected for Hepatitis C (and any associated scarring), a liver disorder, headaches, erectile dysfunction, and psychological and cognitive disorders, including dementia of frontal lobe and Alzheimer’s disease. A complete rationale should be given for all opinions and conclusions expressed. 8. Schedule the Veteran for a VA examination with an appropriate professional to determine the extent and severity of his service-connected right rotator cuff tendonitis. a) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; b) The examination must include testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran’s initial range of motion and upon repetitive testing. Further, the examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present; c) The examiner must estimate any functional loss in terms of additional degrees of limited motion of the right shoulder experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The rationale for all opinions offered should be provided. 9. Schedule the Veteran for an appropriate VA examination to address the severity of the Veteran’s hemorrhoids. The electronic record, including a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical history. All indicated tests and studies should be undertaken. All pertinent symptomatology must be reported in detail. 10. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated, including the intertwined issue of entitlement to a TDIU. If the benefits sought on appeal are denied, in whole or in part, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the appeal should be returned to the Board for further appellate consideration, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Crohe, Counsel