Citation Nr: 20021500 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-25 143 DATE: March 26, 2020 ORDER The claim for service connection for hearing loss is denied. The claim for service connection for rheumatoid arthritis is granted. The claim for service connection for right hip synovitis is granted. The claim for service connection for meralgia paresthetica of the left lower extremity is granted. The claim for service connection for meralgia paresthetica of the right lower extremity is granted. The claim for service connection for degenerative arthritis with spondylosis of the lumbar spine is granted. The claim for service connection for an acquired psychiatric disability, diagnosed as major depression with anxiety, is granted. The claim for service connection for PTSD is denied. The claim for service connection for alcohol use is denied. The claim for service connection for chronic headaches is granted. The claim for service connection for sleep apnea is granted. The claim for service connection for fibromyalgia is granted. The claim for service connection for gastroesophageal reflux disease is granted. The claim for service connection for carpal tunnel syndrome of the right upper extremity is granted. The claim for service connection for carpal tunnel syndrome of the left upper extremity is granted. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date earlier than November 29, 2016 for the grant of service connection for tinnitus is denied. REMANDED The claim for service connection for spondylosis of the cervical spine is remanded. Entitlement to a temporary total evaluation for bilateral carpal tunnel release for carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability as defined by VA standards. 2. The rheumatoid arthritis is aggravated by service-connected bilateral foot disability. 3. The right hip synovitis is aggravated by service-connected bilateral foot disability. 4. The meralgia paresthetica of the left lower extremity is aggravated by service-connected bilateral foot disability. 5. The meralgia paresthetica of the right lower extremity is aggravated by service-connected bilateral foot disability. 6. The degenerative arthritis with spondylosis is aggravated by service-connected bilateral foot disability. 7. The Veteran has major depression with anxiety related to service; the evidence weighs against a finding that PTSD is related to service. 8. The Veteran does not have a current alcohol use disability. 9. The chronic headaches are aggravated by service-connected lumbar, bilateral foot, and major depression. 10. The sleep apnea is aggravated by medications taken for service-connected bilateral foot and psychiatric disabilities. 11. The fibromyalgia is aggravated by medications taken for service-connected rheumatoid arthritis. 12. The gastroesophageal reflux disease is aggravated by medications taken for service-connected rheumatoid arthritis. 13. The carpal tunnel syndrome of the right upper extremity is aggravated by medications taken for service-connected rheumatoid arthritis. 14. The carpal tunnel syndrome of the left upper extremity is aggravated by medications taken for service-connected rheumatoid arthritis. 15. The Veteran’s claim for service connection for tinnitus was received by the RO on November 29, 2016 and was granted by the RO in June 2015; there is no evidence of an earlier formal or informal claim for benefits for this issue prior to that date. 16. The Veteran’s service-connected bilateral tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The Veteran does not have a ratable bilateral ear hearing loss disability due to disease or injury incurred in or aggravated by his active military service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 2. The criteria for service connection for rheumatoid arthritis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for right hip synovitis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for meralgia paresthetica of the left lower extremity have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for service connection for meralgia paresthetica of the right lower extremity have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for degenerative arthritis with spondylosis of the lumbar spine have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 7. The criteria for service connection for alcoholism have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 8. The criteria for service connection for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 9. The criteria for service connection for major depression have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. 38 C.F.R. § 3.303. 10. The criteria for service connection for chronic headaches have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 11. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 12. The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 13. The criteria for service connection for gastroesophageal reflux disease have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 14. The criteria for service connection for carpal tunnel syndrome of the right upper extremity have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 15. The criteria for service connection for carpal tunnel syndrome of the left upper extremity have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. 38 C.F.R. §§ 3.303, 3.310. 16. The criteria for an effective date prior to November 29, 2016, for the grant of service connection for tinnitus are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 17. The criteria are not met for the assignment of an initial evaluation in excess of 10 percent for bilateral tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from January 1987 to January 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2017, December 2017 and June 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In his pleadings, the issue of entitlement to total disability based on individual unemployability (TDIU) is raised by the Veteran. As this claim involves issues of increased rating not before the Board in appellate status, the Board does not have jurisdiction of this issue. Duty to assist and notify There is no indication in this record of a failure to notify or assist the Veteran to include examination and obtaining medical records. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). General laws and regulations that pertain to service connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be established for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or ‘medical nexus’ between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303 (a). Service connection is permissible, as well, on a secondary basis for disability that is proximately due to, the result of, or chronically aggravated by a service-connected condition. See 38 C.F.R. § 3.310 (a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this alternative secondary basis, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for bilateral hearing loss The Veteran claims that he has bilateral hearing loss, which is related to military service. As explained, the most fundamental requirement for any claim for service connection is that the Appellant has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA’s adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). There is no competent evidence of the claimed disabilities upon which to predicate a grant of service connection. The Veteran has neither provided nor identified any competent medical evidence showing that he has bilateral hearing disability. For the purpose of applying the laws administered by VA, impaired hearing is considered a “disability” when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). In response to the current claim a VA audiological examination was conducted in August 207. The pure tone thresholds in the right ear at 500, 1000, 2000, 3,000, and 4000 Hz were 10, 5, 5, 15, and 15 decibels, respectively; and in the left ear the pure tone thresholds were 10, 10, 5, 20, and 20 decibels, respectively. The speech recognition scores were 94 percent in the right ear and 96 percent in the left ear. As such, he does have sufficient hearing loss to be considered a ratable disability by VA standards. See 38 C.F.R. § 3.385. Therefore, service connection cannot be granted. Without proof of a current disability, there can be no valid claim. In summary, the evidence of record does not reach the level of equipoise as to whether the Veteran currently suffers (or suffered at any point during the appeal or relevant to the appeal period) from a bilateral hearing loss disability for VA purposes. The claim must be denied. Service connection for rheumatoid arthritis with right hip synovitis, bilateral meralgia paresthetica of the lower extremities, and degenerative arthritis with spondylosis of the lumbar spine The Veteran contends that the currently diagnosed rheumatoid arthritis. right hip synovitis, bilateral meralgia paresthetica of the lower extremities, and degenerative arthritis with spondylosis of the lumbar spine are related to military service. In regard to service connection element (1), current disability, VA treatment and examination reports include diagnoses of rheumatoid arthritis, right hip synovitis, bilateral meralgia paresthetica of the lower extremities, and degenerative arthritis with spondylosis of the lumbar spine. In regard to element (2) for secondary service connection, evidence of a service connected disability, service connection is in effect for bilateral pes planus, plantar fasciitis and posterior tibial insertional tendonitis. In regard to element (3), causal relationship, a VA examiner in September 2017 found that the Veteran’s spondylosis of the dorsal and lumbar segments of the spine were secondary to rheumatoid arthritis. Thereafter, the RO granted service connection for pes planus, plantar fasciitis and posterior tibial insertional tendonitis (bilateral foot disability). The Veteran’s attorney submitted medical opinions in November 2019 from a private physician who submitted medical abstracts and opined that the Veteran’s right hip synovitis, bilateral meralgia paresthetica of the lower extremities, and degenerative arthritis with spondylosis of the lumbar spine are aggravated by the service connected bilateral foot disability. Granting the benefit-of-the-doubt, the Board finds that the requirement for a nexus opinion is met. There is no contradictory medical opinion of record and the Board is precluded from seeking negative medical evidence. As all three elements have been satisfied, the Board finds that service connection for rheumatoid arthritis with right hip synovitis, bilateral meralgia paresthetica of the lower extremities, and degenerative arthritis with spondylosis of the lumbar spine is warranted.   Service connection for an acquired psychiatric disability and for an alcohol use disability The Veteran contends that the variously diagnosed psychiatric disorders are related to military service. To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a), which requires it be diagnosed in accordance with the DSM; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). The Board has expanded this issue to consideration of an acquired psychiatric disability, to include major depression and PTSD. As to major depression, the attorney-representative submitted a competent and probative opinion providing that this disability is aggravated is attributable to symptoms that initially developed in service. As to PTSD, the record does not reflect such a positive opinion or an exception to the need for a verified stressor, or a basis to remand for additional development of an asserted stressor. On this basis, the Board denies service connection for PTSD. Also in appellate status is a claim for service connection for an alcohol use disability. As to direct service connection, such is not permissible under current law. As to secondary service connection, this is permissible under current law is the evidence reflected that such was secondary to service-connected disability. Here, the record, to include evidence submitted by the attorney-representative, reflects that that Veteran has not drank alcohol during the appellate period or otherwise reflect a current disability related to the now-service connected major depression. Service connection for an alcohol use disability is denied. Service connection for chronic headaches The Veteran contends that the currently diagnosed chronic headaches are related to military service. In regard to service connection element (1), current disability, private examination reports dated in November 2019 include diagnosis of headaches. In regard to element (2) for secondary service connection, evidence of a service connected disability, service connection is in effect for bilateral foot and lumbar spine disabilities. In regard to element (3), causal relationship, the Veteran’s attorney submitted medical opinions in November 2019 from a private physician who opined that the Veteran’s chronic headaches are precipitated and exacerbated by his service connected lumbar spine and bilateral foot disabilities as well as major depression. Granting the benefit-of-the-doubt, the Board finds that the requirement for a nexus opinion is met. As all three elements have been satisfied, the Board finds that service connection for chronic headaches is warranted. Service connection for sleep apnea The Veteran contends that the currently diagnosed sleep apnea is related to military service. In regard to service connection element (1), current disability, private examination reports dated in November 2019 include diagnosis of sleep apnea. In regard to element (2) for secondary service connection, evidence of a service connected disability, service connection is in effect for bilateral foot disabilities and major depression. In regard to element (3), causal relationship, the Veteran’s attorney submitted medical opinions in November 2019 from a private physician who opined that the Veteran’s sleep apnea was caused by medications taken for his service connected psychiatric and bilateral foot disabilities. Granting the benefit-of-the-doubt, the Board finds that the requirement for a nexus opinion is met. As all three elements have been satisfied, the Board finds that service connection for sleep apnea is warranted. Service connection for fibromyalgia The Veteran contends that the currently diagnosed fibromyalgia is related to military service. In regard to service connection element (1), current disability, VA examination and treatment reports include diagnosis of fibromyalgia. In regard to element (2) for secondary service connection, evidence of a service connected disability, service connection is in effect for rheumatoid arthritis. In regard to element (3), causal relationship, the record contains an August 2016 outpatient record which contains an opinion that the Veteran’s fibromyalgia was caused by steroidal medications taken for his service connected rheumatoid arthritis. Granting the benefit-of-the-doubt, the Board finds that the requirement for a nexus opinion is met. As all three elements have been satisfied, the Board finds that service connection for fibromyalgia is warranted. Service connection for gastrointestinal disorders to include gastroesophageal reflux disease The Veteran contends that the currently diagnosed gastrointestinal disorders to include gastroesophageal reflux disease is related to military service. In regard to service connection element (1), current disability, VA examination and treatment reports include diagnosis of gastroesophageal reflux disease. In regard to element (2) for secondary service connection, evidence of a service connected disability, service connection is in effect for rheumatoid arthritis. In regard to element (3), causal relationship, VA examination was conducted in March 2018. The VA examiner found that the Veteran’s gastroesophageal reflux disease is aggravated by medications taken for the now service-connected rheumatoid arthritis. Granting the benefit-of-the-doubt, the Board finds that the requirement for a nexus opinion is met. As all three elements have been satisfied, the Board finds that service connection for gastroesophageal reflux disease is warranted. Service connection for bilateral carpal syndrome The Veteran contends that the currently diagnosed bilateral carpal syndrome is related to military service. In regard to service connection element (1), current disability, VA examination and treatment reports include diagnosis of bilateral carpal syndrome. In regard to element (2) for secondary service connection, evidence of a service connected disability, service connection is in effect for rheumatoid arthritis. In regard to element (3), causal relationship, the record contains an August 2016 outpatient record which contains an opinion that the Veteran’s bilateral carpal syndrome was caused by steroidal medications taken for his service connected rheumatoid arthritis. Granting the benefit-of-the-doubt, the Board finds that the requirement for a nexus opinion is met. As all three elements have been satisfied, the Board finds that service connection for bilateral carpal syndrome is warranted. Entitlement to an effective date earlier than November 29, 2016, for the grant of service connection for tinnitus The Veteran contends that an effective date earlier than November 29, 2016, should be assigned to the grant of service connection for tinnitus. On November 29, 2016, the RO received VA Form 21-0966 declaring the Veteran’s intent to file claims for service connection. The RO received a formal claim for hearing loss on January 27, 2017. In a September 2017 rating decision, the RO granted service connection for tinnitus, assigning a 10 percent disability evaluation, effective on November 29, 2016, the date the RO received the Veteran’s intent to file a claim for VA benefits. The effective date of an award of disability compensation based on an original claim or a claim reopened after final disallowance is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If the claim is received within one year of separation from the service, the effective date for an award of disability compensation for direct service connection is the day following separation from active service, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As noted, the governing law and regulatory provisions provide that that the effective date for an award of compensation, based on an original claim filed more than a year after service, shall be the date of VA receipt of the claim, or the date entitlement arose, whichever is later. Again, the Veteran’s claim for service connection was received on November 29, 2016. There is no evidence that the Veteran sought service connection for this disability on a formal or informal basis before this date. Thus, an earlier effective date cannot be assigned. Neither the Veteran nor the attorney-representative has made any specific contentions. Under the circumstances of this case, the Board is without authority to grant the benefit sought on appeal. It is precluded by law. In Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court held that in cases such as this in which the law is dispositive, the claim should be denied because of the absence of legal merit. Higher rating for tinnitus Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating action in September 2017 granted service connection for tinnitus, assigning a 10 percent effective, November 29, 2016, pursuant to 38 C.F.R. § 4.87, Code 6260 (recurrent tinnitus). The Veteran contends that a higher rating should be assigned for tinnitus. Diagnostic Code 6260 was revised, effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Code 6260, Note (2). Note (1) to Diagnostic Code 6260 provides that a separate rating for tinnitus may be combined with a rating under Diagnostic Codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports a rating under one of those Diagnostic Codes. Note (3) also provides that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) should not be rated under Diagnostic Code 6260 but should be rated as part of any underlying condition causing the tinnitus. 38 C.F.R. § 4.87. It is now well-settled that Diagnostic Code 6260 limits a veteran to a single 10 percent maximum rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Indeed, the Federal Circuit has held that the maximum schedular rating available for tinnitus is 10 percent. See Smith v. Nicholson 451 F.3d 1344, 1348 (Fed. Cir. 2006). Currently, the Veteran’s tinnitus is already evaluated as 10 percent disabling. Thus, there is no legal basis upon which to award an increased rating for tinnitus in each ear on a schedular basis, and the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND Service connection for spondylosis of the cervical spine VA examination and opinion is needed regarding whether the Veteran’s spondylosis of the cervical spine is aggravated by his service connected disabilities. Entitlement to a temporary total evaluation for bilateral carpal tunnel release for carpal tunnel syndrome As the claim for service connection for bilateral carpal syndrome has been granted additional development is needed regarding the claim for entitlement to a temporary total evaluation for bilateral carpal tunnel release for carpal tunnel syndrome. The matters are REMANDED for the following action: 1. Obtain and associate with the e-file any outstanding VA medical records. 2. Upon receipt of all additional records, obtain a medical nexus opinion concerning the etiology of spondylosis of the cervical spine. Was such disability at least as likely as not caused by service or caused or aggravated by a service-connected disability? In making this critical determination, the examiner must consider the Veteran’s statements regarding any symptoms in service, and to having experienced continuous symptoms during the years since. The examination reports should include discussion of the Veteran’s documented medical history and assertions. All of the examiners must discuss the underlying medical rationale of their opinions, if necessary, citing to specific evidence in the file. 3. After effectuating the grants of service connection for bilateral carpal tunnel syndrome contained in this instance decision, readjudicate the issue of temporary total evaluation for bilateral carpal tunnel release treatment. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.