Citation Nr: 20004041 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-02 040 DATE: January 16, 2020 ORDER Service connection for a heart disability, claimed as ischemic heart disease, and other than hypertension, is denied. Service connection for a cervical spine disability is denied. An effective date earlier than August 28, 2013, for the award of service connection for pseudofolliculitis barbae is denied. REMANDED Entitlement to an initial compensable rating for pseudofolliculitis barbae is remanded. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for sleep apnea, to include on a secondary basis, is remanded. Entitlement to service connection for hypertension, to include on a secondary basis, is remanded. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against finding that the Veteran has had a heart disability, claimed as ischemic heart disease, and other than hypertension, at any time during or approximate to the pendency of the claim. 2. The preponderance of the competent evidence of record is against finding that the Veteran has had a cervical spine disability at any time during or approximate to the pendency of the claim. 3. The Veteran’s original claim for service connection for pseudofolliculitis barbae was received on August 28, 2013; there is nothing in the record received prior to that date which may be construed as an informal or formal claim for service connection for pseudofolliculitis barbae. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart disability, claimed as ischemic heart disease, and other than hypertension, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an effective date earlier than August 28, 2013, for the grant of service connection for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to May 1988. He testified at a videoconference hearing before the undersigned in July 2019. Regarding the above-noted claims for service connection for a heart disability other than hypertension and for hypertension, as will be explained in greater detail below, this was claimed initially and adjudicated as a claim for service connection for ischemic heart disease. See August 2013 notice of disagreement/informal claim. However, in the course of the development and adjudication of that claim, the Veteran also described having elevated blood pressure and considered that to be a part of his claim. See July 2019 hearing transcript, p. 21. In Clemons v. Shinseki, 25 Vet. App. 1 (2009), it was held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Therefore, in accordance with Clemons, the Board has recharacterized the issue on appeal. 1. Entitlement to service connection for a heart disability, claimed as ischemic heart disease, and other than hypertension. The Veteran’s claim for service connection for a heart disability was claimed initially as a claim for ischemic heart disease, specifically. See August 2013 notice of disagreement/informal claim. The Veteran later explained the basis for that claim by asserting he was exposed to aviation fuel while serving aboard the USS Mackanaugh and requested service connection for ischemic heart disease. See March 2014 Statement in Support of Claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a heart disability, to include ischemic heart disease, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Instead, the Veteran has a diagnosis of hypertension (and this will be addressed separately below in the Remand portion of this decision). In this regard, a review of the claims file shows that the Veteran’s service treatment records (STRs) are silent for any complaints, findings or treatment related to a heart disability. Likewise, post-service treatment records are also silent for any findings related to a heart disability other than hypertension. Significantly, at the July 2019 Board hearing, when it was noted that the Veteran had applied for service connection for ischemic heart disease and he was asked whether he had heart problems, the Veteran testified that his blood pressure was elevated when he filed that claim. He also testified that no treatment provider had ever diagnosed a heart condition. See July 2019 hearing transcript, p. 21. While the Veteran filed a claim for ischemic heart disease, specifically, he is not competent to provide a diagnosis in this case. The claimed disability is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that medical testing and other specific findings are needed to properly assess and diagnose the disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence which shows that, apart from hypertension, the Veteran does not have a diagnosis of a heart disability, including ischemic heart disease. As noted above, the Veteran has also admitted to not having a diagnosed heart disability. In conclusion, the Board finds that the weight of the competent and credible evidence establishes that the Veteran has not been shown to have a heart disability, claimed as ischemic heart disease. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board must conclude that the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. (1990). 2. Entitlement to service connection for a cervical spine disability. The Veteran contends he has a current neck disability as a result of participating in sports and falling down a flight of stairs while in service. See March 2014 Statement in Support of Claim; July 2019 hearing transcript, p. 20. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a cervical spine disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, a review of the clams file shows that the Veteran’s STRs, including his March 1988 service separation examination report, are silent for any complaints, findings, or treatment related to the cervical spine. Likewise, post-service VA and private treatment records and examination reports are also silent for any complaints, findings, or diagnoses related to the cervical spine. Moreover, the Veteran testified at the July 2019 Board hearing that he had not been diagnosed with a neck disability and only experienced neck pain. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. However, this is not established in this case. Although the Veteran has sought medical treatment on numerous occasions since his military service, including for his low back, he has never once complained of any neck problems. The Veteran has also not indicated that his neck is in any way functionally impaired. Thus, the competent evidence does not show that he has any neck pain that reaches the level of a functional impairment of earning capacity. The Board concludes that the weight of the competent and credible evidence establishes that the Veteran has not been shown to have a cervical spine disability. See Brammer v. Derwinski, supra. Thus, the Board must conclude that the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. (1990). 3. Entitlement to an effective date earlier than August 28, 2013, for the award of service connection for pseudofolliculitis barbae. The law provides that the effective date for an award of service connection is the day following separation from active duty, or the day entitlement arose, if the claim is filed within the year after active duty. When the claim is filed more than a year after active duty, the effective date for service connection will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Treatment records by themselves do not constitute ‘informal claims’ for service connection. Sears v. Principi, 16 Vet. App. 244 (2002). While VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998). The Veteran’s original claim of service connection for pseudofolliculitis barbae was received by VA on August 28, 2013. The earliest post-service evidence of this disability is during a VA skin examination in November 2014, which noted a diagnosis of pseudofolliculitis barbae related to service. A November 2014 rating decision awarded service connection and established an effective date of August 28, 2013. No communication or correspondence prior to that date may be reasonably construed as an informal or formal claim for benefits. Notably, a review of the claims file shows that the claims filed prior to August 28, 2013, in 2010 and 2011, were service connection claims for other disabilities; namely, sleep apnea, a right knee disability, a left ankle disability, and a left elbow disability. Pseudofolliculitis barbae was not claimed in either of those earlier claims. At the hearing before the Board, it was explained that the Veteran had thought he filed an earlier claim for his pseudofolliculitis barbae in 2011. The Veteran admitted he might have been wrong about that and his representative pointed out that the 2011 claim was for other disabilities, and that pseudofolliculitis barbae was not claimed until 2013. See July 2019 hearing transcript, p. 15. The controlling law and regulations regarding effective dates are clear. The effective date of an award of compensation based on an original claim (received beyond one year after discharge), will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). In this case, the service connection claim for pseudofolliculitis barbae was submitted in August 2013 (as acknowledged by the Veteran’s representative) and the effective date has been properly assigned as the date of claim. Accordingly, the Veteran’s claim for an earlier effective date is denied. REASONS FOR REMAND Rating for Pseudofolliculitis Barbae During the July 2019 Board hearing, the Veteran alleged a worsening of his pseudofolliculitis barbae since his last VA examination in November 2014. Therefore, remand for an additional VA examination is necessary to assess the current severity of the Veteran’s service-connected skin symptoms. Prior to the examination, updated treatment records should also be obtained. Service Connection for Bilateral Hearing Loss The Veteran maintains he has hearing loss related to noise exposure in service and/or his service-connected tinnitus. He underwent a VA examination for his claimed hearing loss in November 2014. At that time, it was found he did not have a hearing loss disability by VA standards. Since then, the Veteran has asserted that he currently has a hearing loss disability under 38 C.F.R. § 3.385. See July 2019 hearing transcript. As such, a remand is necessary for a VA examination to determine the nature and etiology of the Veteran’s claimed bilateral hearing loss. Service Connection for Headaches At the July 2019 Board hearing, the Veteran testified that he has suffered from headaches since service. He reported treating headaches with over-the-counter medications in service and also raised secondary service connection arguments, stating his belief that his headaches are related to stress and pain. See July 2019 hearing transcript. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran has essentially contended that this disability arose in service and has persisted on an ongoing basis since that time. Accordingly, a VA examination is required. Service Connection for Psychiatric Disability, to include PTSD The Veteran maintains that he has psychiatric disability(ies) related to service, to include a racially motivated assault. Specifically, the Veteran testified at the July 2019 Board hearing that he and another man were attacked by several men in Sheboygan, Michigan, and that he reported the incident to his commander. Although the Veteran was provided in November 2013 a VA Form 21-0781a, which is specific to claims for PTSD based on personal assault, he has not completed this form. His military personnel records and service treatment records have been obtained, but do not confirm this alleged assault. Alternatively, the Veteran claims that his current psychiatric disability is secondary to (in pertinent part) his back disability, hearing loss, tinnitus, and headaches. See March 2014 Statement in Support of Claim. The Veteran underwent a VA psychiatric examination November 2014 with an addendum opinion obtained that same month. The examiner who provided the addendum opinion found that the Veteran had an unspecified anxiety disorder related to a racially charged fight. Neither examiner commented on any secondary service connection contentions. The Veteran is currently service-connected for tinnitus, and his service connection claims for the low back, hearing loss and headache disabilities are remanded herein. An addendum etiology opinion should be obtained on remand. Service Connection for Low Back, Left Elbow, Right Knee, and Left Ankle Regarding the Veteran’s low back claim, he maintains that his current low back disability is related to inter-command sports activities, working onboard a ship, and falling from a ship’s ladder during service. See March 2014 Statement in Support of Claim, January 2017 VA examination report and July 2019 hearing transcript. He reported that his low back pain has been continuous since service. See July 2019 hearing transcript. The medical opinion provided by the January 2017 VA examiner did not address the Veteran’s statements of continuous symptoms. Therefore, the Board finds that a remand is necessary to obtain a medical addendum opinion in this matter. Regarding the Veteran’s left elbow, right knee, and left ankle claims, he maintains that these disabilities are due to participating in inter-command sports, slipping onboard a cutter, falling down stair in service. See August 2013 Notice of Disagreement and July 2019 hearing transcript. None of the etiology opinions of record are adequate for adjudication purposes. February 2013 VA examination reports found that the Veteran’s diagnosed right knee, left elbow and left ankle disabilities were not related to service, but failed address the Veteran’s statements of continuous symptoms. An August 2013 private medical opinion found that the claimed right knee, left elbow and left ankle disabilities were related to injuries in service, but failed to provide adequate reasons and bases for the opinion. The development of facts includes a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment: “if [an examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2; Littke v. Derwinski, 1 Vet. App. 90, 92 (1990); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, additional medical opinions should be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Service Connection for Sleep Apnea and Hypertension The Veteran’s claim for sleep apnea includes secondary service connection arguments. See August 2013 notice of disagreement/informal claim. Therefore, this claim will be remanded as intertwined with the claim for service connection for a psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Similarly, at the July 2019 Board hearing, the Veteran explained that when he filed his claim for service connection for ischemic heart disease, he was experiencing elevated blood pressure, which he believed to be related to his stresses in services. The Veteran’s post service treatment records show he has a diagnosis of hypertension; therefore, this claim will also be remanded as intertwined with the claim for service connection for a psychiatric disability. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding VA or private medical records. 2. Afford the Veteran an appropriate VA examination to determine the etiology of any current or recent headache disability. The entire claims file must be made available to and be reviewed by the examiner. All necessary tests should be completed. An explanation for all opinions expressed must be provided. The examiner must provide the following opinions concerning whether it is at least as likely as not (50 percent or greater probability) that: a. any current headache disability had its onset in, or is otherwise caused by, the Veteran’s active service. The examiner must address the Veteran’s statements that this disability has persisted since service; b. that a headache disability was caused by a psychiatric or orthopedic disability; or c. that a headache disability was aggravated by a psychiatric or orthopedic disability. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Specifically, with respect to the secondary service connection opinions, the examiner must address the Veteran’s contention that his headaches are causally related to the stress and pain related to service-connected disabilities. The examiner must explain the rationale for any opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he/she should so state and provide an explanation as to the reason(s) therefor. 3. After the above records development has been completed, the Veteran should be afforded a VA skin examination to determine the current severity of his service-connected pseudofolliculitis barbae. The Veteran’s claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. The examiner is asked to perform all indicated tests and studies and utilize the appropriate Disability Benefits Questionnaire. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the existence and etiology of any bilateral hearing loss. The examiner must state whether the Veteran has hearing loss under 38 C.F.R. § 3.385. If he does, the examiner should opine: (a) whether the hearing loss is at least as likely as not (a 50 percent probability or greater) related to service, to include noise exposure therein; and (b.) whether it is at least as likely as not related to or proximately due to his service-connected tinnitus or aggravated beyond its natural progression by his service-connected tinnitus? In rendering the above opinions, the examiner is advised that the mere absence of evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner is also asked to discuss the impact of in-service and any post-service noise exposure on the current hearing loss disability. The examiner is to consider the Veteran’s statements of record and is advised that lay persons are competent to report symptoms and treatment, and that their reports must be taken into account in formulating the requested opinions. A clear explanation for all opinions and a discussion of the facts and medical principles involved should be provided. If the examiner is unable to provide an opinion he or she should explain why. 5. Obtain an addendum opinion to the January 2017 VA back examination. The claims file must be provided to and reviewed by the examiner. An examination should only be scheduled if the medical professional deems it necessary. The examiner is asked to: a) Identify any and all low back disabilities diagnosed during the appeal period. b) For each low back disability diagnosed, opine as to whether it is at least as likely as not (a probability of 50 percent or greater) incurred in or related to service, to include the low back complaints noted in March 1986. The examiner must consider and discuss the Veteran’s statements that he has had continuous low back problems since service. The examiner must also consider and discuss the VA medical opinion already of record and provide an explanation for all opinions provided. If any requested opinion cannot be provided without resort to speculation, the examiner should explain whether the inability to provide the opinion is due to the limits of the examiner’s medical knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the opinion to be provided. 6. After the above records development is completed, obtain an addendum opinion as to the etiology of the Veteran’s right knee disability from a qualified VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any current right knee disability had its onset in, or is otherwise related to, the Veteran’s military service. The examiner must acknowledge and consider the Veteran’s service treatment records, lay contentions and all VA and private etiology opinions of record. The examiner should state a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 7. After the above records development is completed, obtain an addendum opinion as to the etiology of the Veteran’s left elbow disability from a qualified VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any current left elbow disability had its onset in, or is otherwise related to, the Veteran’s military service. The examiner must acknowledge and consider the Veteran’s service treatment records, lay contentions and all VA and private etiology opinions of record. The examiner should state a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 8. After the above records development is completed, obtain an addendum opinion as to the etiology of the Veteran’s left ankle disability from a qualified VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any current left ankle disability had its onset in, or is otherwise related to, the Veteran’s military service. The examiner must acknowledge and consider the Veteran’s service treatment records, lay contentions and all VA and private etiology opinions of record. The examiner should state a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 9. Forward the Veteran’s claims file to an appropriate VA examiner who must review the claims file (to include this remand) and provide an addendum opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any of the Veteran’s service-connected disabilities, including tinnitus and any disabilities found to be service-connected subsequent to this decision, caused or aggravated the Veteran’s unspecified anxiety disorder. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as “any increase in disability.” See Allen v. Brown, 7 Vet. App. 439, 448 (1995). If the examiner determines that the requested opinion may not be provided without a physical examination of the Veteran, then such should be scheduled. A complete rationale must be provided for all opinions presented. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 10. If the Veteran is awarded service connection for a psychiatric disability, schedule him for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea and hypertension. The examiner must opine whether either disability is at least as likely as not (1) proximately due to the service-connected psychiatric disability, or (2) aggravated beyond its natural progression by the service-connected psychiatric disability. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. R. Fletcher, 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.