Citation Nr: A19001434
Decision Date: 09/20/19	Archive Date: 09/20/19

DOCKET NO. 190212-2757
DATE: September 20, 2019

ORDER

As new and material evidence sufficient to reopen the previously denied claim for service connection for residuals of a head trauma has been received, the application to reopen is granted.

Entitlement to service connection for residuals of a head trauma is granted.

Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted.

Entitlement to service connection for degenerative arthritis of the lumbar spine is denied.

Entitlement to service connection for a neurological condition, to include convulsive disorder, is denied.

Entitlement to service connection for a right knee disability is denied.

Entitlement to service connection for a contusion of the right thoracic rib area is denied.

Entitlement to service connection for a right hip condition is denied.

Entitlement to service connection for a left hip condition is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for a heart condition/murmur is denied.

Entitlement to service connection for high blood pressure is denied.

Entitlement to compensation under 38 U.S.C. § 1151 for heterotopic calcification of the upper abdomen/sternum is denied.

Entitlement to an initial rating in excess of 30 percent for a cold weather injury of the right foot is denied.

Entitlement to an initial rating in excess of 30 percent for a cold weather injury of the left foot is denied.

Entitlement to an initial rating in excess of 10 percent for right wrist sprain with ganglion cyst and osteoarthritis (OA) is denied.

Entitlement to an initial 10 percent rating, but no higher, for surgical scar(s) of the right upper extremity (RUE) is granted.

Entitlement to an initial compensable rating for a scar of the forehead is denied.

Entitlement to an initial compensable rating for hemorrhoids is denied.

Entitlement to an initial rating in excess of 50 percent for migraine headaches is denied.

Entitlement to an initial 30 percent rating, but no higher, for RUE carpal tunnel syndrome (CTS) is granted for the entire period on appeal.

REMANDED

Entitlement to service connection for erectile dysfunction (ED) is remanded.

Entitlement to service connection for tinnitus is remanded.

Entitlement to service connection for sleep apnea is remanded.

Entitlement to an initial rating in excess of 30 percent for cervical degenerative joint disease (DJD) with uncovertebral hypertrophy is remanded.

Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity (LUE) is remanded.

Entitlement to an initial rating in excess of 10 percent for right ankle degenerative arthritis is remanded.

Entitlement to an initial rating in excess of 10 percent for left ankle degenerative arthritis is remanded.

Entitlement to an initial rating in excess of 70 percent for depression with residuals of head trauma, to include brain damage, behavior modification, and cognitive deficits is remanded.

Entitlement to an initial rating in excess of 30 percent for left shoulder rotator cuff tendonitis with labral tear and OA is remanded.

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or by reason of being housebound is remanded.

Entitlement to an effective date prior to October 8, 2014, for the grant of a total disability rating based on individual unemployability (TDIU) is remanded.

Entitlement to an effective date prior to October 8, 2014, for the grant of eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. § chapter 35 is remanded.

FINDINGS OF FACT

1. In an April 2002 decision, the RO denied the Veteran’s claim for service connection for residuals of a head trauma on the basis that there was no evidence linking any residuals of a head trauma to service; the Veteran did not submit new evidence or a notice of disagreement (NOD) within a year of this decision.

2. Evidence submitted subsequent to the April 2002 RO decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of a head trauma.

3. The Veteran has current residuals of a head trauma, including brain atrophy, that are likely the result of his active service.

4. The Veteran has a current diagnosis of PTSD that is likely the result of his in-service motor accident (MVA).

5. The preponderance of the evidence is against finding that a chronic low back disability began during active service or within one year of discharge, or is otherwise related to an in-service injury, event, or disease.

6. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a convulsive disorder or any neurological condition other than those already service connected.

7. The preponderance of the evidence is against finding that a right knee disability began during active service, or is otherwise related to an in-service injury, event, or disease or a service-connected disability.

8. The preponderance of the evidence is against finding that a chronic right rib condition began during active service, or is otherwise related to an in-service injury, event, or disease.

9. The preponderance of the evidence is against finding that a chronic right hip condition began during active service, or is otherwise related to an in-service injury, event, or disease or a service-connected disability.

10. The preponderance of the evidence is against finding that a chronic left hip condition began during active service, or is otherwise related to an in-service injury, event, or disease or a service-connected disability.

11. The evidence does not demonstrate that the Veteran has or had right or left ear hearing loss for VA purposes at any time during the appeal period.

12. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a heart-related disability.

13. The preponderance of the evidence is against finding that high blood pressure or hypertension began during active service, or is otherwise related to an in-service injury, event, or disease or a service-connected disability.

14. The Veteran does have an additional disability due to his VA scar tissue removal surgery that is not due to his own willful misconduct.

15. The Veteran’s additional disability due to his VA scar tissue removal surgery is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, nor was it due to an event which was not reasonably foreseeable.

16. The Veteran is currently in receipt of the maximum schedular rating for his service-connected cold weather injury of the right foot.

17. The Veteran is currently in receipt of the maximum schedular rating for his service-connected cold weather injury of the left foot.

18. The Veteran is currently in receipt of the maximum schedular rating for his service-connected right wrist sprain with ganglion cyst and OA.

19. For the entire period on appeal, the Veteran’s RUE surgical scar has been painful.

20. For the entire period on appeal, the Veteran’s RUE surgical scar was not unstable or and did not have underlying soft tissue damage or any other disabling effects.

21. For the entire period on appeal, the Veteran’s scar of the forehead was not painful or unstable, did not have visible or palpable tissue loss or gross distortion or assymetry of any feature or paired set of features, and did not show any characteristics of disfigurement.

22. For the entire period on appeal, the Veteran’s service-connected hemorrhoids were manifested by no more than mild or moderate symptoms with no evidence of large, thrombotic, or irreducible hemorrhoids or excessive redundant tissue.

23. The Veteran is currently in receipt of the maximum schedular rating for his service-connected migraine headaches.

24. For the entire period on appeal, the Veteran’s service-connected RUE CTS was manifested by no more than moderate incomplete paralysis of the median nerve.

CONCLUSIONS OF LAW

1. The April 2002 rating decision denying service connection for residuals of a head trauma is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103.

2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for residuals of a head trauma has been submitted.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

3. The criteria for service connection for residuals of a head trauma are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for PTSD are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f).

5. The criteria for service connection for a low back disability are not met.  38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309.

6. The criteria for service connection for a neurological condition, to include convulsive disorder, are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

7. The criteria for service connection for a right knee disability are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310.

8. The criteria for service connection for a contusion of the right thoracic rib area are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

9. The criteria for service connection for a right hip disability are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310.

10. The criteria for service connection for a left hip disability are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310.

11. The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.385.

12. The criteria for service connection for a heart condition/murmur are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

13. The criteria for service connection for high blood pressure or hypertension are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).

14. The criteria for entitlement to VA compensation under 38 U.S.C. § 1151 for a painful mass/scar from a VA scar tissue removal surgery have not been met.  38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 

15. The criteria for an initial rating in excess of 30 percent for a cold weather injury of the right foot have not been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7122.

16. The criteria for an initial rating in excess of 30 percent for a cold weather injury of the left foot have not been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7122.

17. The criteria for an initial rating in excess of 10 percent for right wrist sprain with ganglion cyst and OA have not been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5215.

18. The criteria for an initial disability rating of 10 percent, but no higher, for service-connected surgical scar(s) of the RUE have been met for the entire period on appeal.  38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7804.

19. The criteria for an initial compensable rating for a scar of the forehead have not been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7800.

20. The criteria for an initial compensable rating for hemorrhoids have not been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7336.

21. The criteria for an initial rating in excess of 50 percent for migraine headaches have not been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100.

22. The criteria for an initial disability rating of 30 percent, but no higher, for service-connected RUE CTS have been met for the entire period on appeal.  38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8515.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board notes that the rating decisions on appeal were issued in June 2015, August 2015, August 2016, November 2016, March 2017, June 2017, and September 2017.  In April 2018, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). 

The Veteran served on active duty in the United States Air Force from May 1974 to June 1977. 

The Veteran selected the Higher-Level Review lane when he opted in to the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form.  Accordingly, the November 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form.  The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). 

At the time of the Veteran’s April 2018 request for higher-level review, the claim for compensation under 38 U.S.C. § 1151 for residuals of a December 2012 right wrist surgery was in appellate status.  However, the AOJ did not adjudicate this issue in its November 2018 Higher-Level Review rating decision.  Therefore, the Board cannot adjudicate the issue of compensation under 38 U.S.C. § 1151 for residuals of a December 2012 right wrist surgery.  The Veteran may resubmit the review request to the AOJ or notify the AOJ that this issue is still pending.

New and Material Evidence

Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  New evidence means 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).

According to the United States Court of Appeals for Veterans Claims (Court), the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis.  See Evans v. Brown, 9 Vet. App. 273 (1996).  When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, raise a reasonable possibility of substantiating the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim.  See Evans, supra at 283; see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim).

The credibility of the newly submitted evidence is presumed for the purposes of reopening the claim.  See Justus v. Principi, 3 Vet. App. 510 (1992).

1. Residuals of a head trauma

The Veteran’s claim for service connection for residuals of a head trauma was originally denied in a January 2000 rating decision.  Rating Decision, January 2000.  The RO determined there was no evidence of a chronic disability to justify a belief that the claim was well-grounded.  The Veteran submitted an NOD, but did not submit a timely VA Form 9 after the RO’s issuance of a May 2000 statement of the case.

Subsequent to the passage of the Veterans Claims Assistance Act of 2000, the RO readjudicated the claim in an April 2002 rating decision.  Rating Decision, April 2002.  The RO determined that there was no evidence showing that the Veteran’s complaints were related to an in-service accident.  The Veteran did not submit any new evidence or an NOD within one year of this denial.  The April 2002 RO decision became final and is the last prior denial of this claim. 

Since the April 2002 latest final decision, the Board finds that the Veteran has submitted new and material evidence for the residuals of a head trauma claim.  Specifically, he submitted a private medical opinion noting that he had evidence of focal bifrontal region atrophy consistent with a concussion, traumatic brain injury (TBI), and memory loss on a CT scan and that this supported his contentions of an in-service TBI.  Private opinion, Dr. C.N.B., December 2014.  This is sufficient to reopen the claim.  See Shade, supra; see also Hodge, supra.

Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131.  Generally, the evidence must 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995).

In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.

2. Residuals of a head trauma

The Veteran contends that he has residuals of a head trauma, other than his separately service connected headaches and depression, that were caused by his in-service head injuries.  He, therefore, believes service connection is warranted.

The AOJ did not make any favorable findings for this issue.  

The questions before the Board are (1) whether the Veteran has current residuals of a head trauma, (2) whether there was an in-service event or injury, and (3) whether a causal relationship or nexus exists between any current residuals and an in-service head injury.

With regard to a present disability, Dr. C.N.B. diagnosed the Veteran with residuals of a head trauma, including focal bifrontal region atrophy on CT scan.  Private opinion, Dr. C.N.B., December 2014.  The first element of Shedden/Caluza is met.

With regard to an in-service event, the Veteran’s service treatment records indicate that was involved in an MVA that caused a mild concussion and scalp contusion.  The second element of Shedden/Caluza is also met.

The remaining question is whether there is a medical nexus between the Veteran’s in-service concussion and his current residuals.  

As noted above, the Veteran submitted a December 2014 examination and opinion from Dr. C.N.B.  He noted the Veteran’s in-service head injury and current residuals, including brain atrophy, and provided a medical nexus.  Moreover, the Veteran is already service connected for headaches and depression related to this in-service head injury.  

In light of the positive private opinion and other service connected conditions related to the in-service head injury, the Board finds that the evidence is, at minimum, in equipoise regarding whether the Veteran’s current residuals of a head trauma are related to his military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  The benefit of the doubt will be conferred in the Veteran’s favor, and his claim for service connection for residuals of a head trauma is granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

3. PTSD

Service connection for PTSD specifically requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (requiring mental disorder diagnoses to conform with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V)); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor.  38 C.F.R. § 3.304(f).  

The Veteran contends that he has PTSD that is a result of his military service.  Specifically, he 

The AOJ did not make any favorable findings for this issue.  

The questions before the Board are (1) whether the Veteran has a current diagnosis of PTSD, (2) whether there is credible supporting evidence that an in-service stressor occurred, and (3) whether a causal relationship or nexus exists between any PTSD and the claimed in-service stressor.

With regard to a present disability, a letter from the Veteran’s private psychologist diagnoses him with PTSD.  Dr. B.V. opinion, July 2015.  Although not specifically stated, the Board assumes that, as a clinical psychologist, he used the appropriate criteria for diagnosis under the DSM-V.  The first elements of Shedden/Caluza and 38 C.F.R. § 3.304(f) are met.

With regard to an in-service event or stressor, the Veteran claims that he experienced an MVA in service with resulting head injury in service.  This is corroborated in the service treatment records.  The second elements of Shedden/Caluza and 38 C.F.R. § 3.304(f) are also met.

The remaining question is whether there is a medical nexus between the Veteran’s in-service MVA and his current PTSD.  The above-referenced private psychologist letter provides such a nexus.  Dr. B.V. indicated that the Veteran began to experience psychological symptoms and behavioral changes following the MVA and concluded that the MVA contributed to his development of PTSD.  Moreover, the Veteran has been granted service connection by the AOJ for depression based on this same in-service incident.  

The Veteran was afforded a VA examination in August 2015.  VA Initial PTSD examination, August 2015.  The examiner concluded that the Veteran did not have a current diagnosis of PTSD.  However, as the private psychologist did provide such a diagnosis and the VA examiner failed to address the multiple other diagnoses of PTSD in the VA treatment records, the Board finds this opinion less probative.  Moreover, the examiner did not provide an opinion on the etiology of any PTSD in light of this lack of diagnosis.  As such, the VA opinion is not probative on the issue of whether the Veteran’s PTSD is related to service.  

In light of the positive evidence and lack of sufficient contradictory negative evidence, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran’s current PTSD is related to his military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304(f).  The benefit of the doubt will be conferred in the Veteran’s favor.  The service-connection claim for PTSD is granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.  

4. Degenerative arthritis of the lumbar spine

The Veteran contends that he has a low back disability that was caused by his military service.  Specifically, he claims that he first suffered a back injury in service and that he has had back problems since that time.  He, therefore, believes service connection is warranted.

The AOJ found that the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine.  Rating Decision, June 2015.  The first element of Shedden/Caluza is met.  

The questions before the Board are (1) whether there was an in-service event or injury, and (2) whether a causal relationship or nexus exists between the Veteran’s low back disability and any in-service event or injury.

With regard to an in-service event or injury, the Board’s review of the Veteran’s service treatment records reflects that he was treated for a muscle strain of the back in August 1976.  The second element of Shedden/Caluza is also met.  

However, despite the current diagnosis and in-service back injury, there is no evidence of a medical nexus to support a grant of service connection.

Significantly, the Veteran was afforded a VA examination and opinion to address the etiology of his low back complaints in May 2015. VA Back (Thoracolumbar Spine) Conditions examination, May 2015.   The examiner diagnosed the Veteran with DJD of the lumbosacral spine and low back muscle strain.  She noted his documented in-service acute lumbar strain, as well as his two in-service MVAs.  Despite noting these in-service injuries, she was unable to link his current complaints to service.  She explained that his current degenerative changes were the result of the normal aging process and typical for the general population.  She also noted that he did not seek treatment for any low back complaints immediately following service or until he suffered post-service back injuries related to a motorcycle accident and an occupational incident.  She concluded that, if the Veteran’s current degenerative changes were related in-service injuries 40 years prior, one would expect to see far more significant degenerative changes than those seen on the Veteran’s x-rays.  

Consideration has been given to the Veteran’s contentions that his current degenerative arthritis of the lumbar spine is related to his service.  Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of orthopedics and neurology.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  While the Veteran is certainly competent to report that he had an in-service low back injury and that he currently has low back symptoms, he is not competent to link those complaints to a particular diagnosis or etiology.  His assertions are therefore not competent evidence of a medical nexus.

The Board has also considered continuity of symptomatology as arthritis is considered a chronic disease based on 38 C.F.R. § 3.303.  Service connection may be established by showing continuity of symptoms since service.  38 C.F.R. § 3.303(a); see also Walker, supra; Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (holding that “the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an ‘[o]rganic disease[] of the nervous system.’”).  Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptoms.  Given that arthritis was not noted during service and the VA examiner specifically stated that arthritis beginning in service would be much more advanced now that the Veteran’s current x-rays show, service connection via continuity of symptomatology has not been established.

There is also no evidence of degenerative arthritis of the lumbar spine within one year of discharge to warrant a grant of service connection on a presumptive basis.

Accordingly, the Board finds that the claim of entitlement to service connection for degenerative arthritis of the lumbar spine must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

5. Neurological condition, to include convulsive disorder

The Veteran contends that he has a neurological condition, to include a convulsive disorder, that was caused by his military service.  Specifically, he claims that he has seizures that are due to his in-service head injuries.  He, therefore, believes service connection is warranted.

The AOJ did not make any favorable findings for this issue.  

The questions before the Board are (1) whether the Veteran has a current neurological disability, (2) whether there was an in-service event or injury, and (3) whether a causal relationship or nexus exists between any current neurological disability and an in-service event or injury.

A review of the medical evidence of record fails to establish a diagnosed convulsive disorder or neurological condition, other than those that have already been separately service connected.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Although the Veteran claims that he has a convulsive disorder and that he takes medication to stop any seizures, there is no evidence to support this.  VA Form 9, January 2017.  Significantly, there are no diagnoses of epilepsy, seizures, or other convulsive disorder in any of the numerous treatment records.  Moreover, the medication that the Veteran is referring to – topiramate – is also used for migraines.  It is clear from the VA neurologist’s notes that the Veteran’s migraines are the reason for his topiramate prescription.  See, e.g., VA treatment record, September 2015.

The Board has thoroughly reviewed the post-service medical evidence and finds that, while the Veteran does have migraine headaches and a prescription for topiramate, there is no competent diagnosis of a convulsive disorder or neurological condition other than those already service connected.  

Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of neurologic medicine.  See Kahana, supra.  While the Veteran is certainly competent to report his symptoms, he is not competent to attribute his symptoms to a particular diagnosis or any diagnosis at all.  See Jandreau v. Nicholson, 492 F.3s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  His assertions are therefore not competent evidence of a diagnosis of a convulsive disorder or neurological condition.  Further, his opinion would also be significantly outweighed by the lack of diagnosis from his treating VA neurologist, who clearly holds the level of medical expertise to address the nature and etiology of his complaints.  

Accordingly, the first element of Shedden/Caluza is not met for the neurological condition/convulsive disorder claim.  Service connection cannot be granted for a neurological condition, to include convulsive disorder.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against this claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

6. Right knee disability

The Veteran contends that he has a right knee disability that was caused by his military service.  Specifically, he claims that his right knee disability is secondary to his service-connected bilateral foot and ankle disabilities.  Claim, June 2017.  He, therefore, believes service connection is warranted on a secondary basis.

The AOJ found that the Veteran has a current diagnosis of right medial meniscus tear.  Rating Decision, September 2017.  The first elements of Shedden/Caluza and Wallin are met.  

The questions before the Board are (1) whether there was an in-service event or injury or a service-connected disability, and (2) whether a causal relationship or nexus exists between the Veteran’s right knee disability and any in-service event or injury or service-connected disability.

With regard to an in-service event, the Veteran’s service treatment records are negative for any right knee complaints, diagnoses, or treatment.  The Veteran reported that he fell out of a truck in service, landing feet first and injuring his right knee.  Veteran statement, April 2018.  However, this is not supported by the record.  Significantly, a treatment record from the Veteran’s private physician opines that if the Veteran had an untreated meniscal tear in the 1970s, he would have more arthrosis in the medial compartment of the knee joint now.  Dr. R.P.W. treatment record, February 2016.  This contradicts the Veteran’s belief that he had a meniscal tear in service.  Moreover, the Veteran’s statement regarding an in-service right knee injury was received the record was closed on April 4, 2018.  As such, the Board finds there is no evidence to support a finding of an in-service event, disease, or injury relating to the right knee.  The second element of Shedden/Caluza is not met and the claim for direct service connection fails on that basis.

However, the Veteran has not only claimed that his right knee disability is directly related to his service.  Rather, he also claims that it was caused by his service-connected right and left foot and ankle disabilities.  The record reflects that he is service-connected for cold weather injuries of the left and right feet and associated degenerative arthritis of the left and right ankles.  The second element of Wallin is met.

The remaining question, therefore, is whether there is evidence of a medical nexus between the Veteran’s current right medial meniscus tear and his service-connected bilateral foot and ankle disabilities.  The Board finds that there is not.  

The Veteran was provided a VA examination and opinion to address his right knee claim in August 2017.  VA Knee and Lower Leg Conditions examination, August 2017.  The examiner diagnosed the Veteran with a right knee meniscal tear and right knee degenerative arthritis but did not find that these conditions were related to his military service or service-connected bilateral foot and ankle disabilities.  He explained that meniscal tears are caused by rotary knee injuries, not altered gait from foot and ankle problems.  

This conclusion was supported by a second VA opinion provided in March 2018.  VA Knee opinion, March 2018.  The March 2018 examiner explained that any additional load force or stress from the bilateral foot and ankle disabilities would not cause a rotational injury that could result in a meniscal tear.  Further, he noted that the Veteran was service connected for both feet and both ankles.  As such, he opined that there was no compensation by one leg for the other, as both legs were equally affected. 

In support of his claim, the Veteran submitted a private opinion from Dr. C.N.B.  Dr. C.N.B. opinion, November 2017.  He opined that the Veteran’s current right knee disability was the result of abnormal gait form his service-connected bilateral foot and ankle disabilities, resulting in abnormal forces on the right knee.  However, Dr. C.N.B. failed to address the fact that both feet and ankles were service connected and that this would not result in favoring of one side, as indicated by the March 2018 VA examiner.  His failure to address this fact limits the probative value of his opinion and renders it less probative than the VA examiners’ opinions. 

Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making a definitive clinical determination of the nature and etiology of the Veteran’s right knee disability based on knowledge of orthopedic medicine.  See Kahana, supra.  While the Veteran can describe that he experiences right knee symptoms, he is not able to provide competent evidence as to the etiology of his condition.  

Accordingly, the Board finds that the claim of entitlement to service connection for a right knee disability must be denied on a direct and secondary basis.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

7. Contusion of the right thoracic rib area

The Veteran contends that he has a right thoracic rib area condition that was caused by his military service.  Specifically, he claims that he first suffered a contusion of the right thoracic rib area in service and that he currently experiences residuals from that injury.  He, therefore, believes service connection is warranted.

The AOJ found that the Veteran had an in-service right thoracic rib area injury.  Rating Decision, June 2015.  The second element of Shedden/Caluza is met.  

The questions before the Board are (1) whether the Veteran has a current disability, and (2) whether a causal relationship or nexus exists between any current disability and the in-service contusion of the right thoracic rib area.  

With regard to a current disability, the Veteran was afforded a VA examination in May 2015.  VA Muscle Injuries examination, May 2015.  Although the examiner did not provide a specific current diagnosis, he did note that the Veteran experienced anterior chest pain and likely had calcification in the fibrocartilage portions of the anterior thoracic cage.  The Board will accept this as a current diagnosis and the first element of Shedden/Caluza is also met.

However, despite the current diagnosis and in-service contusion, there is no evidence of a medical nexus to support a grant of service connection.

Significantly, the May 2015 VA examiner noted that the Veteran had significant thoracic cage trauma after service.  As this trauma was far more severe than the contusion that the Veteran experienced in service, the examiner found it was the more likely cause of his pain.  The examiner further explained that there was no evidence of continued rib pain after service as a result of the in-service injury until the post-service incident and that the Veteran denied any such chronic pain at the time of the in-service injury.  In light of the lack of symptoms following the resolution of the contusion and the far more serious post-service thoracic trauma, the examiner was unable to link the Veteran’s current pain to service.  

Consideration has been given to the Veteran’s contentions that his current right thoracic rib area condition is related to his service.  Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of orthopedics.  See Kahana, supra.  While the Veteran is certainly competent to report that he had an in-service right thoracic rib area contusion and that he currently has thoracic pain, he is not competent to link those complaints to a particular diagnosis or etiology.  His assertions are therefore not competent evidence of a medical nexus.

Accordingly, the Board finds that the claim of entitlement to service connection for a contusion of the right thoracic rib area must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

8. Right hip condition

The Veteran contends that he has a right hip condition that was caused by his military service or a service-connected disability.  Specifically, he has claimed that he injured his right hip in service and also that it is the result of his service-connected cervical spine disability or nonservice-connected lumbar spine disability.  NOD, September 2015.  He, therefore, believes service connection is warranted.

The AOJ did not make any favorable findings for this issue.  

The questions before the Board are (1) whether the Veteran has a current right hip disability, (2) whether there was an in-service event or injury or a service-connected disability, and (3) whether a causal relationship or nexus exists between any current right hip disability and an in-service event or injury or service-connected disability.

With regard to a present disability, the Veteran’s VA and private treatment records are negative for any diagnoses relating to the right hip.  However, the Veteran does claim pain and functional impairment from the right hip.  This claim has not been substantiated by a medical professional.  However, as discussed below, the Veteran’s claim fails regardless of whether the Board accepts these complaints as a current disability.

With regard to an in-service event, the Veteran’s service treatment records are negative for any complaints relating to the right hip.  As such, the Board finds there is no evidence to support a finding of an in-service event, disease, or injury relating to the right hip.  The second element of Shedden/Caluza is not met and the claim for direct service connection fails on that basis.

The Veteran has also claimed that his alleged right hip disability is due to his cervical and/or lumbar spine disabilities.  Veteran statement, April 2015.  As discussed in detail above, his lumbar spine disability is not service connected.  However, he does have a service-connected cervical spine disability.  The second element of Wallin is met.

The remaining question, therefore, is whether there is evidence of a medical nexus between the Veteran’s claimed current right hip condition and his service-connected cervical spine disability.  The Board finds that there is not.  There is no evidence indicating that the Veteran’s right hip complaints are related to any aspect of his military service or a service-connected disability, to include a cervical spine disability.  He has not provided any medical evidence linking a right hip condition to service, nor has he provided any lay or medical evidence of continuous right hip pain since service.  Significantly, his separation examination was normal, and he denied any painful joints other than the right hand.  See Service treatment records. 

The Board notes that the Veteran submitted a private medical opinion to support his right hip claim.  Dr. C.N.B. opinion, April 2015.  Dr. C.N.B. bases his opinion on an inaccurate reading of the service treatment records.  Specifically, he claims that the Veteran was seen for hip pain in October and November 1976.  However, the service treatment records only show pelvic pain likely due to inguinal strain on those dates.  Service treatment records.  There is no reference to the hips and the etiology of inguinal strain is inconsistent with any orthopedic hip injury.  In light of this inaccuracy, the Board finds that Dr. C.N.B.’s opinion lacks probative value.  

Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making a definitive clinical determination of the nature and etiology of the Veteran’s right hip complaints based on knowledge of orthopedic medicine.  See Kahana, supra.  While the Veteran can describe that he experiences right hip pain, he is not able to provide competent evidence as to a diagnosis or the etiology of his complaints.  

The Board notes that the Veteran was not afforded a VA examination in conjunction with his right hip claim.  However, as the evidence does not indicate an in-service event or injury or continuous symptoms, a VA examination is not required for this claim on a direct basis.  Further, there is no evidence other than the Veteran’s own unsubstantiated statements that his right hip complaints are related to his service-connected cervical spine disability to support a suggestion of a relationship.  Such statements are not sufficient to trigger the need for a VA examination.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010).  

Accordingly, the Board finds that the claim of entitlement to service connection for a right hip condition must be denied on a direct or secondary basis.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

9. Left hip condition

The Veteran contends that he has a left hip condition that was caused by his military service or a service-connected disability.  Specifically, he has claimed that he injured his left hip in service and also that it is the result of his service-connected cervical spine disability or nonservice-connected lumbar spine disability.  NOD, September 2015.  He, therefore, believes service connection is warranted.

The AOJ did not make any favorable findings for this issue.  

The questions before the Board are (1) whether the Veteran has a current left hip disability, (2) whether there was an in-service event or injury or a service-connected disability, and (3) whether a causal relationship or nexus exists between any current left hip disability and an in-service event or injury or service-connected disability.

With regard to a present disability, the Veteran’s VA and private treatment records are negative for any diagnoses relating to the left hip.  However, the Veteran does claim pain and functional impairment from the left hip.  This claim has not been substantiated by a medical professional.  However, as discussed below, the Veteran’s claim fails regardless of whether the Board accepts these complaints as a current disability.

With regard to an in-service event, the Veteran’s service treatment records are negative for any complaints relating to the left hip.  As such, the Board finds there is no evidence to support a finding of an in-service event, disease, or injury relating to the left hip.  The second element of Shedden/Caluza is not met and the claim for direct service connection fails on that basis.

The Veteran has also claimed that his alleged left hip disability is due to his cervical and/or lumbar spine disabilities.  See Veteran statement, April 2015.  As discussed in detail above, his lumbar spine disability is not service connected.  However, he does have a service-connected cervical spine disability.  The second element of Wallin is met.

The remaining question, therefore, is whether there is evidence of a medical nexus between the Veteran’s claimed current left hip condition and his service-connected cervical spine disability.  The Board finds that there is not.  There is no evidence indicating that the Veteran’s left hip complaints are related to any aspect of his military service or a service-connected disability, to include a cervical spine disability.  He has not provided any medical evidence linking a left hip condition to service, nor has he provided any lay or medical evidence of continuous left hip pain since service.  Significantly, his separation examination was normal, and he denied any painful joints other than the right hand.  See Service treatment records. 

The Board notes that the Veteran submitted a private medical opinion to support his left hip claim.  Dr. C.N.B. opinion, April 2015.  Dr. C.N.B. bases his opinion on an inaccurate reading of the service treatment records.  Specifically, he claims that the Veteran was seen for hip pain in October and November 1976.  However, the service treatment records only show pelvic pain likely due to inguinal strain on those dates.  Service treatment records.  There is no reference to the hips and the etiology of inguinal strain is inconsistent with any orthopedic hip injury.  In light of this inaccuracy, the Board finds that Dr. C.N.B.’s opinion lacks probative value.  

Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making a definitive clinical determination of the nature and etiology of the Veteran’s left hip complaints based on knowledge of orthopedic medicine.  See Kahana, supra.  While the Veteran can describe that he experiences left hip pain, he is not able to provide competent evidence as to a diagnosis or the etiology of his complaints.  

The Board notes that the Veteran was not afforded a VA examination in conjunction with his left hip claim.  However, as the evidence does not indicate an in-service event or injury or continuous symptoms, a VA examination is not required for this claim on a direct basis.  Further, there is no evidence other than the Veteran’s own unsubstantiated statements that his left hip complaints are related to his service-connected cervical spine disability to support a suggestion of a relationship.  Such statements are not sufficient to trigger the need for a VA examination.  See Waters, supra.  

Accordingly, the Board finds that the claim of entitlement to service connection for a left hip condition must be denied on a direct or secondary basis.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

10. Bilateral hearing loss 

The Veteran contends that he has bilateral hearing loss that was caused by his military service.  Specifically, he claims that he was exposed to loud noises in service and that this has caused current hearing loss.  He, therefore, believes service connection is warranted.

The AOJ did not make any favorable findings for this issue.  

The questions before the Board are (1) whether the Veteran has a current hearing loss disability, (2) whether there was an in-service event or injury, and (3) whether a causal relationship or nexus exists between any current hearing loss disability and an in-service event or injury.

Under VA regulations, hearing loss is considered to be a disability (1) when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or (2) when the auditory thresholds in at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

A review of the medical evidence of record does not establish a diagnosis of right or left ear hearing loss for VA purposes at any time during the appeal period or proximate thereto.  See McClain, supra; Romanowsky, supra.  The Veteran was afforded a VA examination to address his claimed hearing loss in May 2015.  VA Hearing Loss and Tinnitus examination, May 2015.  At that time, audiometric testing did not show hearing loss for VA purposes under 38 C.F.R. § 3.385.  Specifically, none of the auditory thresholds in the specified frequencies were 26 decibels or greater for the right ear and the auditory threshold in the 4000 Hertz frequency was 26 decibels or greater for the left ear.  Speech recognition scores were 96 percent bilaterally.  The Veteran has not provided any evidence or asserted that his hearing loss has worsened since the May 2015 VA examination.  

The Board has also thoroughly reviewed the remainder of the claims file and finds that, while there are subjective complaints of hearing loss, there is no audiometric testing showing right or left ear hearing loss for VA purposes.  The Board notes that a private opinion suggests that the Veteran has hearing for VA purposes based on his conversational impairment.  Dr. C.N.B. opinion, April 2015.  However, this is not substantiated by audiometric testing.  Moreover, the audiometric testing performed one month later showed that the Veteran did not have hearing loss for VA purposes.

Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of audiology and how to perform and interpret audiometric testing.  See Kahana, supra.  While the Veteran is certainly competent to report his symptoms, he is not competent to attribute those complaints to a particular diagnosis or any diagnosis at all.  See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1).  He is not competent to diagnose himself with right or left ear hearing loss for VA purposes.  Further, his opinion would be significantly outweighed by the lack of diagnosis from the VA audiologist, who clearly holds the level of medical expertise to address the nature and etiology of the Veteran’s complaints.  

As the first element of Shedden/Caluza is not met for the bilateral ear hearing loss claim, the remaining questions of in-service disease or injury and medical nexus are irrelevant.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz.

11. Heart condition/murmur

The Veteran contends that he has a current heart condition that was caused by his military service.  Specifically, he claims that he was diagnosed with a heart murmur in service and that is related to a current heart condition.  He, therefore, believes service connection is warranted.

The AOJ did not make any favorable findings for this issue.  

The questions before the Board are (1) whether the Veteran has a current heart-related disability, (2) whether there was an in-service event or injury, and (3) whether a causal relationship or nexus exists between any current heart-related disability and an in-service event or injury.

A review of the medical evidence of record does not establish a diagnosis of any heart-related condition or disability at any time during the appeal period or proximate thereto.  See McClain, supra; Romanowsky, supra.  The Veteran was afforded a VA examination to address his claimed heart condition in May 2015.  VA Heart Conditions examination, May 2015.  The examiner indicated that the Veteran had been diagnosed with a physiologic heart murmur in 1976, but found that he had no current cardiac diagnoses or treatment.  An echocardiogram did not show evidence of any significant valvular disease, cardiac hypertrophy, or cardiac dilatation.  Auscultation of the heart was negative for a murmur or any abnormal sounds.  The examiner also performed interview-based METs testing and found that any impairment of METs was not due to a heart condition.  The examiner concluded that there was no cardiac disability present and that, even if the Veteran’s murmur was still present, without underlying valvular disease, it was not a disability.  VA Heart Conditions opinion, May 2015.  The Veteran has not provided any evidence or asserted that he has developed cardiac symptoms or been diagnosed with a cardiac disability since the May 2015 VA examination.  

The Board has also thoroughly reviewed the remainder of the claims file and finds that there is no evidence of a diagnosed cardiac disability.  

Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of cardiology.  See Kahana, supra.  While the Veteran is certainly competent to report any symptoms, he is not competent to attribute those complaints to a particular diagnosis or any diagnosis at all.  See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1).  He is not competent to diagnose himself with a heart-related condition.  Further, his opinion would be significantly outweighed by the lack of diagnosis from the VA examiner, who clearly holds the level of medical expertise to address the nature and etiology of the Veteran’s complaints.  

As the first element of Shedden/Caluza is not met for the heart condition/murmur claim, the remaining questions of in-service disease or injury and medical nexus are irrelevant.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz.

12. High blood pressure

The Veteran contends that he has high blood pressure that was caused by his military service.  Specifically, he claims that he first had high blood pressure in service and that it continues to the present.  He, therefore, believes service connection is warranted on a secondary basis.

The AOJ did not make any favorable findings for this issue.  

The questions before the Board are (1) whether the Veteran currently has high blood pressure or hypertension, (2) whether there was an in-service event or injury, and (3) whether a causal relationship or nexus exists between any high blood pressure or hypertension and an in-service event or injury.

Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

With regard to a present disability, the Veteran’s VA and private treatment records are negative for any diagnoses of hypertension.  Although the Veteran may have experienced isolated episodes of elevated blood pressure, it is not clear that this rises to the level of hypertension for VA purposes.  However, as discussed below, the Veteran’s claim fails regardless of whether the Board accepts these complaints as a current disability.

With regard to an in-service event, the Veteran’s service treatment records are negative for any complaints or findings of hypertension.  Significantly, his blood pressure at the time of his separation examination was 100/60.  Service treatment records.  As such, the Board finds there is no evidence to support a finding of an in-service event, disease, or injury relating to high blood pressure or hypertension.  The second element of Shedden/Caluza is not met and the claim for service connection also fails on that basis.

Finally, the Board finds that there is no evidence to support a medical nexus between any diagnosed hypertension and the Veteran’s military service.  He has not provided any medical evidence diagnosing hypertension and linking it to service, nor has he provided any credible lay or medical evidence of continuous high blood pressure since service.  Significantly, his separation examination showed normal blood pressure.  Service treatment records. 

Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making a definitive clinical determination of the nature and etiology of the Veteran’s belief that he has hypertension based on knowledge of cardiology.  See Kahana, supra.  While the Veteran can describe what he experiences, he is not able to provide competent evidence as to a diagnosis or the etiology of his complaints.  

The Board notes that the Veteran was not afforded a VA examination in conjunction with his left hip claim.  However, as the evidence does not indicate an in-service event or injury or continuous symptoms, a VA examination is not required for this claim.  See Waters, supra.  

The Board has also considered continuity of symptomatology as hypertension is considered a chronic disease based on 38 C.F.R. § 3.303.  Service connection may be established by showing continuity of symptoms since service.  38 C.F.R. § 3.303(a); see also Walker, supra; Fountain, supra.  Given that hypertension was not noted during service and the Veteran’s blood pressure was normal on his separation examination, service connection via continuity of symptomatology has not been established.

There is also no evidence of hypertension within one year of discharge to warrant a grant of service connection on a presumptive basis.

Accordingly, the Board finds that the claim of entitlement to service connection for high blood pressure/hypertension must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

38 C.F.R. § 1151

Section 1151 compensation is awarded for qualifying additional disability in the same manner as if such additional disability were service-connected.  The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment, VA surgery, or vocational rehabilitation.  38 U.S.C. § 1151(a).

For purposes of establishing entitlement to section 1151 benefits, a disability or death is a qualifying additional disability or qualifying death if the disability or death:

(1) was not the result of the Veteran’s willful misconduct; and

(2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was –

(A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or

(B) an event not reasonably foreseeable.

38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(a)-(d). 

First, there must be evidence of additional disability, as shown by comparing the Veteran’s condition before and after the VA medical care in question.  38 C.F.R. § 3.361(b).  

Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the Veteran by VA.  38 C.F.R. § 3.361(c).  Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c)(1).  In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility.  38 C.F.R. § 3.361(c)(1).  

Third, with regard to causation, the proximate cause of the disability, as opposed to a remote contributing cause, must be 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event that was not reasonably foreseeable.  38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination was the proximate cause of a Veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran’s additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran’s informed consent.  Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32.  See 38 C.F.R. § 3.361(d)(1).  Minor deviations from those requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent.  Id.  Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations.  Id.

Whether the proximate cause of a Veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  See 38 C.F.R. § 3.361(d)(2).  But if the Board makes an initial determination that any additional disability was not caused by VA, the Board is not required to make a finding as to whether the event in question was reasonably foreseeable.  See 38 C.F.R. § 3.361(c); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005). 

13. Heterotopic calcification of the upper abdomen/sternum

The Veteran seeks entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a painful mass/scar of the anterior abdominal wall following a scar tissue removal surgery performed at the VA Medical Center (VAMC) in Boise, Idaho in November 2002.  He argues that his continued or increased pain and mass/scar were not a reasonably foreseeable outcome of the surgery and that they were caused by the use of inferior surgical techniques.  See Claim, November 2014.  Therefore, he believes compensation under 38 U.S.C. § 1151 is warranted.

The AOJ found that the Veteran has additional an disability, the scar, resulting from his November 2002 VA surgery.  See Rating Decision, November 2018.

The questions before the Board are (1) whether the additional disability was due to the Veteran’s willful misconduct, and (2) whether the proximate cause of the additional disability was: (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (b) an event that was not reasonably foreseeable.  

The Board has reviewed the claims file and finds nothing to suggest that the Veteran’s additional disability was due to his willful misconduct.  As such, the Board will turn to the issue of proximate cause.

The record reflects that the Veteran underwent an excision of heterotopic calcification of a prior scar of the upper abdomen at the Boise VAMC on November 4, 2002.  The surgery was without complications and the Veteran was taken to the recovery in stable condition.  See Surgeon's note, November 2002.  The Veteran claims that, after returning home, he sneezed and “felt a pop and [his] abdomen[al] muscles split open.”  See Claim, November 2014.  There is no mention in the Veteran’s claim that he returned to the hospital or sought medical treatment following the sneezing incident.  

A review of the Request for Performance of Operation and operative record shows that it meets the standard of care.  There is no indication of intraoperative or immediate postoperative complications.  The surgeon detailed her procedure and there is nothing to discount that as the proper procedure.  Although the Veteran generally claims that her procedure was not “state-of-the-art,” he fails to provide any reasoning for this or to suggest what procedure should have been followed.  

The Board obtained a medical opinion to address the issue of proximate cause in May 2015.  See VA 1151 opinion, May 2015.  The examiner reviewed the operative note and preoperative consent.  She concluded that the Veteran’s additional disability was not due to any carelessness, negligence, lack of proper skill, error in judgment, or similar finding of fault on the part of VA.  She also concluded that the painful mass/scar that the Veteran experiences was reasonably foreseeable.  She explained that, although not the desired outcome, a painful scar or recurrence of the underlying condition (in this case, heterotopic calcifications of soft tissues) may occur.  She further noted that a first incidence of heterotopic calcification increases the risk of recurrence.  If the Veteran’s current painful mass/scar is another heterotopic calcification, this was reasonably foreseeable.  Moreover, she explained that the Veteran’s painful mass/scar may be an organized hematoma.  An organized hematoma would also be reasonably foreseeable, as bleeding after surgery is a well-known potential consequence.  

The Board notes that the Veteran submitted an opinion from his private physician, Dr. C.N.B. in April 2015.  Dr. C.N.B. opinion, April 2015.  Dr. C.N.B. concluded that the Veteran’s outcome was not foreseeable because it did not happen to a majority of patients and that the majority of patients experience good outcomes.  He seems to suggest that in order for a surgical event to be reasonably foreseeable, it must happen to a majority of patients.  Unfortunately, this is an inaccurate understanding of the law.  As discussed above, reasonably foreseeable refers to ordinary risks that a reasonable healthcare provider would consider.  The VA examiner has indicated that recurrence of heterotopic calcification is such a risk.  As the VA examiner used the correct standard, the Board considers his opinion more probative than the private physician’s.  

As there was no evidence of fault on the part of VA and the possible causes of the Veteran’s painful mass/scar were reasonably foreseeable, the Board finds that the Veteran’s claim for §1151 compensation must be denied.  38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(a)-(d). 

In reaching this decision, the Board has considered the Veteran’s lay statements.  Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive determinations as to clinical decisions and foreseeable complications based on knowledge of abdominal surgery.  See Kahana, supra.  The Veteran has no such expertise.

Given the foregoing, the claim of entitlement to compensation under 38 U.S.C. § 1151 for a painful mass/scar of the anterior abdominal wall following a scar tissue removal must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz , supra.

Increased Rating

Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation 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.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31. 

The Veteran’s entire history is reviewed when making a disability determination.  38 C.F.R. § 4.1.  Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).  

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14.  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

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 evaluation assigned.  38 C.F.R. § 4.27.

14. Rating in excess of 30 percent for a cold weather injury of the right foot from July 10, 2014 to April 4, 2018

The Veteran claims that he deserves a higher initial rating for his cold weather injury of the right foot.  Specifically, he claims that he deserves an additional or extraschedular rating for the chronic pain he experiences.  NOD, August 2015.

The AOJ found that his cold weather injury of the right foot warranted a 30 percent schedular rating under Diagnostic Code 7122.  

Under Diagnostic Code 7122, a 30 percent rating is assigned for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, x-ray abnormalities (osteoporosis, subarticular punched out lesions, or OA).  30 percent is the maximum schedular rating under Diagnostic Code 7122.  38 C.F.R. § 4.104, Diagnostic Code 7122.

Amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, under other diagnostic codes, are separately evaluated.  Other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud’s phenomenon, muscle atrophy, etc., are also separately evaluated, unless they are used to support an evaluation under diagnostic code 7122.  38 C.F.R. § 4.104, Diagnostic Code 7122, Note (1).

Each affected part (e.g., hand, foot, ear, nose) is evaluated separately and the ratings are then combined in accordance with §§ 4.25 and 4.26.  38 C.F.R. § 4.104, Diagnostic Code 7122, Note (2).

The Veteran has been afforded two VA examinations to address his cold injury residuals.  VA Cold Injury Residuals examination, May 2015; VA Cold Injury Residuals examination, June 2016.  Both examiners noted his complaints of arthralgia or other pain, cold sensitivity, color changes, hyperhidrosis, numbness, and locally impaired sensation in the right foot.  The June 2016 examiner also noted nail abnormalities.  X-rays showed OA, but the examiners did not identify any other separate disabilities related to the right foot cold injury.  

While the Board acknowledges the Veteran’s right foot symptoms, including chronic pain, and the effect they have on him, he is already receiving the maximum rating available for cold injury residuals for his right foot.  No higher rating is legally available under his currently assigned diagnostic code and there is no evidence of separate related disabilities to warrant separate ratings.  As the Veteran is in receipt of the maximum rating for a cold weather injury of the right foot, the Board need not consider the possible application of 38 C.F.R. §§ 4.40, 4.45, and 4.59.  See Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable).  

Further, as “cold injury residuals” has its own code, DC 7122, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted.  Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (held that where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy).  

The Board has also considered the Veteran’s argument that he deserves an extraschedular rating for the pain he experiences as a result of his right foot cold weather injury.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extra-schedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating.  First, as a threshold issue, the Board must determine whether the veteran’s disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extra-schedular referral is not necessary.  If, however, the veteran’s disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.”  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran’s disability picture requires the assignment of an extra-schedular rating.

The evidence of record does not reflect that the Veteran’s disability picture is so exceptional as to not be contemplated by the rating schedule.  In fact, the rating criteria under Diagnostic Code specifically include arthralgia or other pain.  Accordingly, the Veteran’s disability picture is adequately and specifically contemplated by the rating schedule.  As the threshold issue under Thun is not met, any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

The Veteran has not 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).

15. Rating in excess of 30 percent for a cold weather injury of the left foot from July 10, 2014 to April 4, 2018

The Veteran claims that he deserves a higher initial rating for his cold weather injury of the left foot.  Specifically, he claims that he deserves an additional or extraschedular rating for the chronic pain he experiences.  NOD, August 2015.

The AOJ found that his cold weather injury of the left foot warranted a 30 percent schedular rating under Diagnostic Code 7122.  

As noted in the discussion for the cold weather injury of the right foot, 30 percent is the maximum schedular rating under Diagnostic Code 7122.  

The Veteran has been afforded two VA examinations to address his cold injury residuals.  VA Cold Injury Residuals examination, May 2015; VA Cold Injury Residuals examination, June 2016.  Both examiners noted his complaints of arthralgia or other pain, cold sensitivity, color changes, hyperhidrosis, and locally impaired sensation in the left foot.  The June 2016 examiner also noted numbness and nail abnormalities.  X-rays showed OA, but the examiners did not identify any other separate disabilities related to the left foot cold injury.  

While the Board acknowledges the Veteran’s left foot symptoms, including chronic pain, and the effect they have on him, he is already receiving the maximum rating available for cold injury residuals for his right foot.  No higher rating is legally available under his currently assigned diagnostic code and there is no evidence of separate related disabilities to warrant separate ratings.  As the Veteran is in receipt of the maximum rating for a cold weather injury of the left foot, the Board need not consider the possible application of 38 C.F.R. §§ 4.40, 4.45, and 4.59.  See Johnston, supra.  

Further, as “cold injury residuals” has its own code, DC 7122, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted.  Copeland, supra.  

The Board has also considered the Veteran’s argument that he deserves an extraschedular rating for the pain he experiences as a result of his left foot cold weather injury.  As discussed above, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher, supra.

As with the right foot discussed above, the evidence of record does not reflect that the Veteran’s left foot disability picture is so exceptional as to not be contemplated by the rating schedule.  In fact, the rating criteria under Diagnostic Code specifically include arthralgia or other pain.  Accordingly, the Veteran’s disability picture is adequately and specifically contemplated by the rating schedule.  As the threshold issue under Thun is not met, any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, supra.

16. Initial rating in excess of 10 percent for right wrist sprain with ganglion cyst and OA from October 10, 2014 to April 4, 2018

The Veteran generally claims that he deserves a higher initial rating for his right wrist sprain with ganglion cyst and OA.

The AOJ found that his right wrist disability warranted a 10 percent rating under Diagnostic Codes 5010-5215.  

Diagnostic Code 5010 for arthritis due to trauma and substantiated by x-ray findings is rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010.

Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.).  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

Limitation of motion of the wrist is rated under Diagnostic Code 5215.  A 10 percent rating is assigned for dorsiflexion of the major or minor hand that is less than 15 degrees or for plantar flexion of the major or minor hand that is limited in line with the forearm.  38 C.F.R. § 4.71a, Diagnostic Code 5215.

The Veteran has been afforded three VA examinations to address his right wrist disability.  VA Wrist Conditions examination, May 2015; VA Wrist Conditions examination, October 2016; VA Wrist Conditions examination, May 2017.  The May 2015 examiner noted his complaints of limitation of motion and pain and recorded range of motion measurements of 0-30 degrees of palmar flexion and 0-20 degrees of dorsiflexion.  The October 2016 examiner also noted the Veteran’s complaints of chronic wrist pain with limitation of motion, weakness, and paresthesias.  He indicated that the examination took place during a flare up and he recorded range of motion measurements of 0-30 degrees of palmar flexion and 0-30 degrees of dorsiflexion.  The May 2017 examiner also noted the Veteran’s complaints of chronic wrist pain with limitation of motion, weakness, and paresthesias.  He recorded range of motion measurements of 0-30 degrees of palmar flexion and 0-30 degrees of dorsiflexion.

While the Board acknowledges the Veteran’s right wrist symptoms, including pain and limitation of motion, and the effect they have on him, he is already receiving the maximum rating available for arthritis of the right wrist with limitation of motion.  No higher rating is legally available under his currently assigned diagnostic code.  As the Veteran is in receipt of the maximum rating for limitation of motion of the right wrist, the Board need not consider the possible application of 38 C.F.R. §§ 4.40, 4.45, and 4.59.  See Johnston, supra.

Further, as he has not been diagnosed with ankylosis of the wrist, there are no alternative diagnostic codes providing a higher schedular rating under which he could be evaluated.  

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, supra.

17. Entitlement to an initial compensable rating for surgical scar(s) of the RUE from October 10, 2014 to April 4, 2018

The Veteran has been assigned a noncompensable initial rating for his RUE scar under Diagnostic Code 7805.  He claims that a higher rating is warranted because his scar is painful.

The AOJ found that the Veteran had a superficial and linear scar on the RUE, measuring 0.7in2.  

Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, that are not considered in a rating provided under diagnostic codes 7800-7804 are to be evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805.  

Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful.  A 20 percent rating is assigned for three or four scars that are unstable or painful.  A 30 percent rating is assigned for five or more scars that are unstable or painful.  38 C.F.R. § 4.118, Diagnostic Code 7804.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1).  If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars.  38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2).  Finally, scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable.  38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3).

The Veteran was first examined for his RUE scar in May 2015.  VA Scars/Disfigurement examination, May 2015.  The examiner noted that the Veteran had a painful scar of the right wrist.  The examiner observed that the scar had mild pain on palpation of the RUE scar and an electric shock sensation with percussion.  The scar was not unstable or due to a burn.

The Veteran was more recently examined for his RUE scar in October 2016.  VA Scars/Disfigurement examination, October 2016.  The examiner noted that the Veteran had a right wrist surgical scar from his 2012 and 2015 surgeries.  He observed that the scar was linear, but not painful or unstable.

In addition to the medical evidence, the Veteran has provided written statements indicating that his RUE scar is painful.  However, he has not indicated that it is unstable.

With resolution of reasonable doubt in the favor of the Veteran, the Board finds that his RUE scar warranted a 10 percent rating for the entire period on appeal.  The May 2015 VA examination indicated that his scar is painful.  Although the October 2016 VA examination did not indicated pain, the Board finds that the Veteran’s lay statements are sufficient to establish that the scar was painful throughout the appeals period.  This single painful scar warrants a 10 percent rating under Diagnostic Code 7804.

Although an increased rating of 10 percent is warranted, the evidence of record does not reflect that the scar is unstable or has underlying soft tissue loss to warrant a higher rating under Diagnostic Code 7801.  Without evidence of underlying soft tissue damage or three or more scars, a rating in excess of 10 percent is not warranted.  

Additionally, there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the currently assigned 10 percent disability rating throughout the appeal period.  Assignment of staged ratings is not warranted.  See Fenderson, supra.

Accordingly, the Board finds that the Veteran’s surgical scar(s) of the RUE warrants a 10 percent initial rating throughout the entire appeal periods, but that the claim of entitlement to a disability rating in excess of 10 percent at any time during the appeal period must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, beyond that assigned herein, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

18. Initial compensable rating for a scar of the forehead from August 12, 2014 to April 4, 2018

The Veteran has been assigned a noncompensable initial rating for his forehead scar under Diagnostic Code 7800.  He generally claims that a higher rating is warranted.

The AOJ found that the Veteran had a scar on his forehead measuring 4.0cm in length and 0.5cm in width, with an overall area of 0.3in2.  

Under Diagnostic Code 7800, a 10 percent rating is assigned for burn scar(s) of the head, face, or neck, scar(s) of the head, face, or neck due to other causes, or other disfigurement of the head, face, or neck with one characteristic of disfigurement.  A 30 percent rating is assigned for such scars with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement.  A 50 percent rating is assigned for such scars with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with four or five characteristics of disfigurement.  An 80 percent rating is assigned for such scars with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with six or more characteristics of disfigurement.  38 C.F.R. § 4.118, Diagnostic Code 7800.

The eight characteristics of disfigurement are: (1) scar 5 or more inches (13 or more cm.) in length, (2) scar at least one-quarter inch (0.6 cm.) wide at widest part, (3) surface contour of scar elevated or depressed on palpation, (4) scar adherent to underlying tissue, (5) scar hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).  38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1).

As noted above, any disabling effects of other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, that are not considered in a rating provided under diagnostic codes 7800-7804 are to be evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805.  

As noted above, the Veteran was afforded a VA Scars/Disfigurement examination in May 2015.  However, this examination did not address the forehead scar.  

The Veteran was more recently examined in October 2016.  VA Scars/Disfigurement examination, October 2016.  The examiner noted that he had a left frontal scalp scar from an in-service MVA.  The scar was not painful, unstable, or due to burns.  The examiner did not observe abnormal pigmentation or texture of the head, face, or neck, tenderness to palpation, gross distortion or assymetry of facial features, visible or palpable tissue loss, or limitation of function.  The Board notes that the examiner indicated that there was a 2.5cm2 area of the head, face, and neck that was indurated or inflexible.  However, it is clear from the context of the examination report that he is referring to the induration from the abdominal scar, not the forehead scar.

Upon review of the evidence of record, there is no basis for a compensable rating for the Veteran’s forehead scar.  He denied experiencing pain or instability of the scar.  The scar did not demonstrate visual or palpable tissue loss, gross distortion or assymetry of any facial features, or any characteristics of disfigurement.  Further, he denied any other functional limitation resulting from the forehead scar to warrant a compensable rating under another diagnostic code.  Without evidence of any symptoms relating to the forehead scar, a compensable rating cannot be assigned under any diagnostic code.

The Board has also considered the Veteran’s general lay statements that he should be entitled to a compensable rating.  However, laypersons do not have the competence to render an opinion as to the level of severity of his forehead scar.  See Kahana, supra.  While the Veteran, as a lay person, is competent to describe observable symptoms, he has not asserted that he experiences any such observable symptoms, such as pain.  

Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the 0 percent rating assigned during the appeals period.  The assignment of staged ratings is not warranted.  See Fenderson, supra.

The Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable rating, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, supra.

19. Initial compensable rating for hemorrhoids from July 10, 2014 to April 4, 2018

The Veteran has been assigned a noncompensable initial rating for his hemorrhoids under Diagnostic Code 7336.  He generally claims that a higher rating is warranted.

The AOJ found that the Veteran had hemorrhoids with mild or moderate symptoms.  

Under Diagnostic Code 7336, a 0 percent rating is assigned for external or internal hemorrhoids that are mild or moderate.  A 10 percent rating is assigned for external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences.  A 20 percent rating is assigned for external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures.  38 C.F.R. § 4.114, Diagnostic Code 7336.  

The Veteran was examined for his hemorrhoids in May 2015.  VA Rectum and Anus Conditions (including Hemorrhoids) examination, May 2015.  At that time, he complained of frequent rectal bleeding with painful inflamed hemorrhoids and the need for rectal suppositories once per month.  The physical examination was normal with no external hemorrhoids, anal fissure, or other abnormalities.  The examiner concluded that the Veteran’s hemorrhoids were mild or moderate.

The Board has also reviewed the VA and private treatment records relating to hemorrhoids.  A December 2014 private examination indicated that the Veteran had chronically bleeding hemorrhoids.  Dr. C.N.B. examination, December 2014.  Additionally, an October 2015 VA treatment record notes that the Veteran was seen for a hemorrhoid that caused itching and bleeding and required hydrocortisone suppositories for relief.  VA treatment record, October 2015.  The hemorrhoid was described as small and without inflammation or blood present.  There are no treatment records showing large, thrombotic, or irreducible hemorrhoids.

Upon review of the evidence of record, there is no basis for a compensable rating for the Veteran’s hemorrhoids.  There is no evidence of large, thrombotic, or irreducible hemorrhoids.  His only documented hemorrhoid during the appeals period was described as small.  His complaints of itching and bleeding without any signs of anemia or severe blood loss are consistent with mild to moderate symptoms.  Without evidence of more severe symptoms, a compensable rating cannot be assigned under the currently assigned diagnostic code.

Further, as hemorrhoids has its own code, DC 7336, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted.  Copeland, supra.  

The Board has also considered the Veteran’s general lay statements that he should be entitled to a compensable rating.  However, laypersons do not have the competence to render an opinion as to the level of severity of his forehead scar.  See Kahana, supra.  While the Veteran, as a lay person, is competent to describe observable symptoms, he has not asserted that he experiences any observable symptoms that are more than mild or moderate.  

Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the 0 percent rating assigned during the appeals period.  The assignment of staged ratings is not warranted.  See Fenderson, supra.

The Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable rating, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, supra.

20. Initial rating in excess of 50 percent for migraine headaches from October 8, 2014 to April 4, 2018

The Veteran generally claims that he deserves a higher initial rating for his migraine headaches.

The AOJ found that his migraine headaches warranted a 50 percent rating under Diagnostic Code 8100.  

Under Diagnostic Code 8100, a 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, Diagnostic Code 8100.

The Veteran was examined for his migraine headaches in October 2016.  VA Headaches (including Migraine Headaches) examination, October 2016.  The examiner noted that the Veteran had very prostrating and prolonged attacks that were productive of severe economic inadaptability.  

While the Board acknowledges the Veteran’s migraine headache pain and frequency and the effect his migraine headaches have on him, he is already receiving the maximum rating available for migraine headaches.  No higher rating is legally available under his currently assigned diagnostic code.  

Further, as he has not been diagnosed with any other neurological conditions that are not already separately addressed herein, there are no alternative diagnostic codes providing a higher schedular rating under which he could be evaluated.  

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, supra.

21. Initial rating in excess of 10 percent from October 10, 2014 to April 24, 2017, and in excess of 30 percent from April 25, 2017 to April 4, 2018, for RUE CTS

The Veteran has been assigned a 10 percent initial rating from October 10, 2014 to April 24, 2017, and a 30 percent initial rating from April 25, 2017 to April 4, 2018, for his RUE CTS under Diagnostic Code 8515.  He generally claims that higher initial ratings are warranted.

The AOJ found that the Veteran had mild incomplete paralysis of the median nerve from October 10, 2014 to April 24, 2017, and moderate incomplete paralysis of the median nerve from April 25, 2017 to April 4, 2018.

Under Diagnostic Code 8515, mild incomplete paralysis of the median nerve is assigned a 10 percent rating for the major or minor hand.  Moderate incomplete paralysis of the median nerve is assigned a 20 percent rating for the minor hand and a 30 percent rating for the major hand.  Severe incomplete paralysis of the median nerve is assigned a 40 percent rating for the minor hand and a 50 percent rating for the major hand.  Complete paralysis of the median nerve of the minor hand with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances, is assigned a 60 percent rating for the minor hand and a 70 percent rating for the major hand.  

The Veteran was examined for his RUE CTS in May 2017. VA Peripheral Nerves Conditions examination, May 2017.  He reported experiencing moderate constant pain, severe intermittent pain, moderate paresthesias and/dysesthesias, and severe numbness.  His muscle strength was 4/5 for wrist flexion and extension, grip, and pinch (thumb to index finger) with no atrophy.  Deep tendon reflexes were normal, and sensation was decreased at the hands and fingers.  The examiner diagnosed him with right CTS and indicated that he had moderate incomplete paralysis of the median nerve.  All other nerves were normal.

The remaining medical and lay evidence is negative for any indications that the Veteran experienced more than the above-described moderate CTS symptoms at any point during the appeals period.  Significantly, a February 2016 private treatment record indicated that the Veteran only complained of some tingling and numbness after undergoing carpal tunnel release surgery.  Dr. R.P.W. treatment record, February 2016.  There is no indication that his symptoms were any worse than the moderate symptoms noted in the May 2017 VA examination.  

With resolution of reasonable doubt in the favor of the Veteran, the Board finds that his RUE CTS warranted a 30 percent rating for the entire period on appeal.  There is no indication that his condition worsened as of April 2017 or that he had less than moderate symptoms prior to that time.  

Although a 30 percent initial rating is warranted for the entire period on appeal, the evidence of record does not reflect that the Veteran experiences severe incomplete paralysis of the median nerve to warrant an even higher rating of 50 percent.  The Board notes that the May 2017 VA examination report notes severe intermittent pain and numbness.  However, there is no indication that this shows severe incomplete paralysis of the median nerve.  Rather, the examiner considered these symptoms, as well as the moderate symptoms, and concluded that the Veteran experienced no more than moderate incomplete paralysis of the median nerve.  As such, a 30 percent initial rating is appropriate.  

Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the 30 percent rating currently assigned.  The assignment of staged ratings is not warranted.  See Fenderson, supra.

Accordingly, the Board finds that the Veteran’s RUE CTS warrants a 30 percent initial rating throughout the entire appeal periods, but that the claim of entitlement to a disability rating in excess of 30 percent at any time during the appeal period must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, beyond that assigned herein, that doctrine is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, supra.

REASONS FOR REMAND

1. Entitlement to service connection for ED is remanded.

The Veteran submitted a private medical opinion indicating that he currently has ED that has been chronic since his in-service head injuries and is also secondary to his service-connected head injury and depression.  Dr. C.N.B. opinion, December 2014.  However, this opinion does not provide any rationale.  As such, it is not sufficient to grant service connection on its own but is sufficient to warrant remand for a VA opinion.  The Veteran is also welcome to submit an addendum opinion from his private physician that includes a rationale.  

2. Entitlement to service connection for tinnitus is remanded.

The Veteran was afforded a VA examination to address the etiology of his tinnitus in May 2015.  VA Hearing Loss and Tinnitus examination, May 2015.  The examiner found that his tinnitus was not related to service because there was no evidence of a noise injury in service.  However, he failed to address whether the tinnitus was related to the Veteran’s in-service head injury.  This claim must be remanded for an addendum opinion to address this deficiency.

3. Entitlement to service connection for sleep apnea 

The Veteran has claimed that his sleep apnea is secondary to medications taken for his service-connected disabilities.  Veteran statement, January 2015.  Despite his current diagnosis, service-connected disabilities, and this assertion, he has not been afforded a VA examination and opinion.  This issue must be remanded for such.

4. Entitlement to an initial rating in excess of 30 percent for cervical DJD with uncovertebral hypertrophy from July 1, 2014 to April 4, 2018 is remanded.

The Veteran submitted a private neck/cervical spine examination in October 2017, indicating that he had additional diagnoses, including myelopathy.  While there was no testing or rationale to support these new diagnoses, the Board recognizes that this indicates a possible worsening of the service-connected neck disability and an examination should have been provided.  While the appeals period is now closed, the Board finds it is appropriate to remand this claim for an opinion that addresses the severity of the Veteran’s neck disability prior to April 4, 2018.  

5. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the LUE from July 10, 2014 to April 4, 2018 is remanded.

As the above opinion on the Veteran’s cervical spine disability, including possible myelopathy, could significantly impact the associated radiculopathy claim, the issues are inextricably intertwined.  A remand of the claim for radiculopathy of the LUE is also required.

6. Entitlement to an initial rating in excess of 10 percent for right ankle degenerative arthritis from May 11, 2016 to April 4, 2018 is remanded.

The above-mentioned private neck examination from October 2017 also indicated that the Veteran constantly required the use of a wheelchair.  This suggests a possible worsening in his ability to walk and possibly his right ankle disability.  While the appeals period is now closed, the Board finds it is appropriate to remand this claim for an opinion that addresses the severity of the Veteran’s right ankle disability prior to April 4, 2018.  

7. Entitlement to an initial rating in excess of 10 percent for left ankle degenerative arthritis from May 11, 2016 to April 4, 2018 is remanded.

The above-mentioned private neck examination also indicated that the Veteran constantly required the use of a wheelchair.  This suggests a possible worsening in his ability to walk and possibly his left ankle disability.  While the appeals period is now closed, the Board finds it is appropriate to remand this claim for an opinion that addresses the severity of the Veteran’s left ankle disability prior to April 4, 2018.  

8. Entitlement to an initial rating in excess of 70 percent for depression with residuals of head trauma, to include brain damage, behavior modification, and cognitive deficits from August 12, 2014 to April 4, 2018 is remanded.

As discussed above, the Board has granted service connection for PTSD.  As psychiatric disabilities are rated under a general rating formula, the Board finds that the AOJ’s implementation of the grant of PTSD could significantly impact a decision on the issue of depression, and the issues are inextricably intertwined.  A remand of the claim for an increased rating for depression is required.

9. Entitlement to an initial rating in excess of 30 percent for left shoulder rotator cuff tendonitis with labral tear and OA from January 9, 2015 to April 4, 2018 is remanded.

In a February 2016 private treatment record, the Veteran’s physician indicated that he was being treated for his left shoulder disability at Harney District Hospital.  Dr. R.P.W. treatment record, February 2016.  Although these relevant outstanding private treatment records were identified prior to the closing of the appeals period, they were not obtained.  A remand is required to allow VA to obtain authorization and request these records.

10. Entitlement to SMC based on the need for aid and attendance or by reason of being housebound is remanded.

Because a decision on the remanded increased ratings issues and the implementations of the grants of service connection and increased ratings herein could significantly impact a decision on the issue of SMC, the issues are inextricably intertwined.  A remand of the claim for SMC based on the need for aid and attendance or by reason of being housebound is required.

11. Entitlement to an effective date prior to October 8, 2014, for the grant of a TDIU is remanded.

Because a decision on the remanded increased ratings issues and the implementations of the grants of service connection and increased ratings herein could significantly impact a decision on the issue of the appropriate effective date for TDIU, the issues are inextricably intertwined.  A remand of the claims for an earlier effective date for the grant of TDIU is required.

12. Entitlement to an effective date prior to October 8, 2014, for the grant of eligibility to DEA under 38 U.S.C. § chapter 35 is remanded.

Because a decision on the remanded increased ratings issues and the implementations of the grants of service connection and increased ratings herein could significantly impact a decision on the issue of the appropriate effective date for eligibility to DEA, the issues are inextricably intertwined.  A remand of the claim for an earlier effective date for the grant of eligibility to DEA is required.

The matters are REMANDED for the following actions:

1. Ask the Veteran to complete a VA Form 21-4142 for Harney District Hospital and any other relevant private treatment records.  Make two requests for the authorized records from any identified physicians or facilities, unless it is clear after the first request that a second request would be futile.  

2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s ED is at least as likely as not related to his military service, including his in-service head injury, or if it is proximately due to service-connected disability/aggravated beyond its natural progression by service-connected disability.  The examiner should specifically address the Veteran’s claimed continuous symptoms since service and any effect from medications used for his service-connected disabilities.  The Veteran may be recalled for examination if deemed necessary.

3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s tinnitus is at least as likely as not related to his military service, including his in-service head injury.  The examiner should specifically address the Veteran’s claimed continuous symptoms since service.  The Veteran may be recalled for examination if deemed necessary.

4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is proximately due to service-connected disability/aggravated beyond its natural progression by service-connected disability.  The examiner should specifically address the Veteran’s contentions of PTSD aggravating his sleep apnea and any effect from medications used for his service-connected disabilities.  The Veteran may be recalled for examination if deemed necessary.

5. Schedule the Veteran for examinations by an appropriate clinician to determine the current severity of his service-connected cervical spine and bilateral ankle disabilities.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of such disability on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements.

With regard to the cervical spine disability, the examiner should address the October 2017 private examination from Dr. C.N.B. and indicate whether the findings in that examination were accurate, including the diagnoses.

With regard to the bilateral ankle disabilities, the examiner should address the finding in the October 2017 private examination from Dr. C.N.B. that the Veteran requires the constant use of a wheelchair.  The examiner should specifically indicate whether the wheelchair use is related to the ankle disabilities.

(Continued on the next page)

 

 

T. Berry

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Moore, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.