Citation Nr: 20022650
Decision Date: 04/01/20	Archive Date: 04/01/20

DOCKET NO. 18-06 083A
DATE: April 1, 2020

ORDER

Entitlement to an initial rating greater than 10 percent for tinnitus is denied.

Entitlement to an initial 20 percent rating for dry eye syndrome is granted, subject to the laws and regulations governing the award of monetary benefits. 

Entitlement to a rating greater than 30 percent for asthma is denied. 

Entitlement to a rating greater than 30 percent for pansinusitis with allergic rhinitis is denied.

Entitlement to service connection for fibromyalgia, also claimed as joint pain and muscle spasm is denied.

Entitlement to service connection for left knee arthritis is granted.

Entitlement to service connection for left ankle arthritis is granted. 

Entitlement to service connection for diabetes is denied. 

Entitlement to service connection for a skin disorder, claimed as skin cancer and skin tags is denied.

Entitlement to service connection for hypertension is denied. 

Entitlement to service connection for headaches is granted. 

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

Entitlement to service connection for major depressive disorder is granted.

Entitlement to service connection for diverticulitis is denied.

Entitlement to service connection for mixed irritable bowel syndrome is granted. 

Entitlement to service connection for a tongue disorder is denied. 

Entitlement to service connection for erectile dysfunction is denied.

Entitlement to compensation under 38 U.S.C. § 1151 for right ankle disability claimed as a result of VA surgical treatment is denied.

Entitlement to an effective date prior to March 20, 2017 for the award of service connection for tinnitus is denied.

Entitlement to an effective date prior to November 4, 2016 for the award of service connection for dry eye syndrome is denied.

Entitlement to an effective date prior to December 15, 2017 for the award of service connection for right shoulder labral tear with acromioclavicular (AC) joint arthritis is denied. 

REMANDED

Entitlement to an initial rating greater than 20 percent for right shoulder labral tear with AC joint arthritis is remanded.

Entitlement to service connection for right knee arthritis is remanded.

Entitlement to service connection for right ankle arthritis is remanded.

Entitlement to service connection for lumbar spine degenerative disc disease is remanded.

Entitlement to service connection for a neurologic disorder of the lower extremities, claimed as nerve damage and nonspecific neurologic complaints is remanded. 

Entitlement to service connection for a liver disorder is remanded. 

Entitlement to service connection for a throat condition, to include gastroesophageal reflux disease (GERD) and dysphagia is remanded.

Entitlement to a total disability rating based on individual unemployability is remanded. 

FINDINGS OF FACT

1. The Veteran is receiving the maximum schedular evaluation available for tinnitus, and referral for extraschedular consideration is not warranted. 

2. The Veteran’s dry eye syndrome is manifested by a bilateral disorder of the lacrimal apparatus. 

3. The Veteran’s asthma is not manifested by FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least 3 per year) courses of systemic (oral or parenteral) corticosteroids. 

4. The Veteran is currently receiving the maximum schedular rating for allergic rhinitis, and his sinusitis is not manifested by chronic osteomyelitis following radical surgery, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries.

5. The preponderance of the evidence is against finding that the Veteran’s bilateral carpal tunnel syndrome began during or is otherwise related to active service, to include as due to an undiagnosed illness. There is no evidence of carpal tunnel manifested to a compensable degree within one year following discharge from active service

6. The preponderance of the evidence is against finding that the Veteran has a diagnosis of fibromyalgia or a qualifying chronic disability manifested by joint pain and/or muscle spasm due to military service in Southwest Asia.

7. Probative medical evidence relates the Veteran’s current left knee arthritis to an inservice motor vehicle accident. 

8. Probative medical evidence relates the Veteran’s current left ankle arthritis to an inservice motor vehicle accident. 

9. The preponderance of the evidence is against finding that the Veteran’s diabetes began during or is otherwise related to active service, and there is no evidence of diabetes manifested to a compensable degree within one year following discharge from active service.

10. The preponderance of the evidence is against finding that the Veteran has a current skin disorder related to active service or events therein; and there is no evidence of skin cancer manifested to a compensable degree within one year following discharge from service. 

11. The preponderance of the evidence is against finding that the Veteran’s hypertension began during or is otherwise related to active service, and there is no evidence of hypertension manifested to a compensable degree within one year following discharge from active service. 

12. Probative medical evidence indicates the Veteran’s headaches are caused and permanently aggravated by service-connected disability. 

13. The preponderance of the evidence is against finding that the Veteran meets applicable diagnostic criteria for PTSD. 

14. Probative medical evidence shows the Veteran is diagnosed with major depressive disorder related to active service and aggravated by service-connected disability. 

15. The preponderance of the evidence is against finding that the Veteran has diverticulitis related to active service or events therein. 

16. A July 2018 private medical record includes an assessment of mixed irritable bowel syndrome; resolving reasonable doubt in the Veteran’s favor, the disorder is manifested to a compensable degree. 

17. The preponderance of the evidence is against finding that the Veteran’s diagnosed tongue disorders are related to active service or events therein. 

18. The preponderance of the evidence is against finding that the Veteran currently has erectile dysfunction related to active service or events therein.

19. Even assuming that VA surgical treatment resulted in additional right ankle disability, the preponderance of the evidence is against finding that the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the treatment or, an event not reasonably foreseeable; and informed consent was obtained prior to surgery. 

20. An intent to file for compensation was reportedly received on March 20, 2017 with a formal claim, which did not include tinnitus, being received on March 26, 2017. On April 11, 2017, another intent to file was received and a formal claim for tinnitus was received on August 15, 2017.

21. An intent to file for compensation was reportedly received on November 4, 2016 and a formal claim for vision loss was received on November 18, 2018.

22. An intent to file for compensation was reportedly received on April 11, 2017 with a formal claim, which did not include the right shoulder, being received on August 15, 2017. Another intent to file was not submitted and a formal claim for service connection for the right shoulder was received on December 15, 2017.

CONCLUSIONS OF LAW

1. The criteria for an initial rating greater than 10 percent for tinnitus are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260. 

2. The criteria for an initial 20 percent rating, and no more, for dry eye syndrome are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.20, 4.79, Diagnostic Code 6025. 

3. The criteria for a rating greater than 30 percent for asthma are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6602. 

4. The criteria for a rating greater than 30 percent for pansinusitis with allergic rhinitis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514, 6522.

5. Bilateral carpal tunnel syndrome was not incurred during service. 38 U.S.C. §§ 1110, 1112, 1117, 1131, 1137; 38 C.F.R. § 3.303, 3.307, 3.309, 3.317.

6. Fibromyalgia or chronic qualifying chronic disability manifested by joint pain and/or muscle spasm was not incurred during active service. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317.

7. Left knee arthritis was incurred during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

8. Left ankle arthritis was incurred during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

9. Diabetes was not incurred during active service nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.

10. A skin disorder was not incurred during active service, nor may skin cancer be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.

11. Hypertension was not incurred during active service nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309.

12. Headaches are secondary to service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310.

13. PTSD was not incurred during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304(f). 

14. Major depressive disorder was incurred in service and/or is secondary to service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310.

15. Diverticulitis was not incurred during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

16. Mixed irritable bowel syndrome was incurred during active service. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.114, Diagnostic Code 7319.

17. A tongue disorder was not incurred during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

18. Erectile dysfunction was not incurred during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

19. The criteria for compensation under 38 U.S.C. § 1151 for right ankle disability as a result of VA surgical treatment are not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361.

20. The criteria for an effective date prior to March 20, 2017 for the award of service connection for tinnitus are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.155, 3.400.

21. The criteria for an effective date prior to November 4, 2016 for the award of service connection for dry eye syndrome are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.155, 3.400.

22. The criteria for an effective date prior to December 15, 2017 for the award of service connection for right shoulder labral tear with AC joint arthritis are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1982 to April 1992, to include service in the Southwest Asia theater of operations from August 1990 to April 1991. He is a Persian Gulf veteran. 38 C.F.R. § 3.317(e). 

In July 2019, the attorney submitted additional evidence with a waiver of RO jurisdiction. 

This appeal stems from multiple rating decisions and is procedurally complex. Relevant procedural history will be discussed in the individual issues below. 

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155.

Entitlement to an initial rating greater than 10 percent for tinnitus

In September 2017, VA granted entitlement to service connection for tinnitus and assigned a 10 percent rating. The Veteran disagreed with the rating and perfected this appeal. He generally contends that the assigned rating does not adequately reflect the severity of his disability. 

A 10 percent evaluation is assigned for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Only a single evaluation may be assigned, whether the sound is perceived in one ear, both ears or in the head. Id. at Note (2). 

On VA examination in September 2017, the Veteran reported recurrent tinnitus and indicated it impacts his concentration and sleep and keeps him up at night.  

The Veteran is currently assigned the maximum schedular rating under the assigned diagnostic code. A higher schedular rating is not available. 

The Veteran’s assertion that tinnitus impacts his concentration and sleep and keeps him up at night seems consistent with the expected functional impact of having recurrent ringing in his ears. There is no medical evidence or written assertions of other symptoms that would fall outside of the expected symptomatology associated with tinnitus, which is ringing in the ears. Even assuming these complaints do fall outside of the expected symptomatology, there is no indication that the Veteran’s tinnitus causes impairment that is exceptional or unusual to the required degree (e.g., marked interference with employment or requiring frequent hospitalization). Accordingly, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008); aff’d Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Entitlement to an initial compensable rating for dry eye syndrome

In August 2017, VA granted entitlement to service connection for dry eye syndrome, claimed as vision loss, and assigned a noncompensable rating from November 4, 2016. The Veteran disagreed with the rating and perfected this appeal. He generally contends that the assigned rating does not adequately reflect the severity of his disability. 

The Board acknowledges that relevant evidence (i.e., VA examination) was received following the February 2018 statement of the case addressing this issue. While the issue was not readjudicated, the decision herein grants the maximum schedular rating under the newly assigned diagnostic code. Accordingly, the Veteran is not prejudiced by the lack of a supplemental statement of the case. Bernard v. Brown, 4 Vet. App. 384 (1993). 

The Veteran underwent a VA examination in June 2017. Corrected visual acuity was 20/40 or better in the right and left eyes at both distance and near. There was no contraction or loss of a visual field. The examiner stated that the Veteran had a disorder of the lacrimal apparatus on both sides due to dry eye syndrome with meibomian gland dysfunction. He also had active nontrachomatous conjunctivitis in both eyes and pinguecula on the right. There was no scarring or disfigurement due to the eye conditions and the Veteran had not had any incapacitating episodes. The examiner stated that the Veteran’s allergy/dry eye syndrome was at least as likely as not caused by or a result of military service (Gulf war exposure to adverse weather and burn pit smoke). 

The Veteran underwent additional VA examination in May 2018. He reported occasional eye irritation and that he was using Systane (tears) and Ketofen (allergy drops). Corrected visual acuity was 20/40 or better in both eyes at distance and near. Physical examination revealed dry eye. There was no visual field defect. The examiner indicated that the Veteran had a disorder of the lacrimal apparatus (dry eye) on both sides. There was no conjunctivitis or other conjunctival condition identified. There was no scarring, disfigurement, or any incapacitating episodes due to any eye condition. 

The rating schedule does not contain a diagnostic code specifically addressing dry eye syndrome and the RO evaluated the condition as analogous to conjunctivitis. 38 C.F.R. § 4.20. Pursuant to the rating schedule, a 10 percent rating is assigned for active chronic conjunctivitis (nontrachomatous) with objective findings, such as red, thick conjunctivae, mucous secretion, etc. If the condition is inactive, it is evaluated based on residuals such as visual impairment and disfigurement. (Diagnostic Code 7800). 38 C.F.R. § 4.79, Diagnostic Code 6018.

On review and with consideration of the symptoms and findings as identified on VA examinations, the Veteran’s dry eye syndrome is more appropriately evaluated under Diagnostic Code 6025. In making this determination, the Board notes that the examinations of record indicate that the Veteran’s dry eye is a disorder of the lacrimal apparatus. “Lacrimal” is defined as “pertaining to the tears.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 996 (32nd ed. 2012). 

Disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.) are rated as follows: unilateral (10 percent) and bilateral (20 percent). 38 C.F.R. § 4.79, Diagnostic Code 6025. Both examinations indicate the Veteran’s dry eye syndrome is a bilateral disorder of the lacrimal apparatus and this appears consistent with the Veteran’s complaints of eye irritation and the need for artificial tears and allergy drops. Resolving any reasonable doubt in the Veteran’s favor, an initial 20 percent rating is warranted. This is the maximum schedular rating under Diagnostic Code 6025. 

Regarding the findings of conjunctivitis and pinguecula, the Veteran is not specifically service-connected for these conditions. Regardless, a rating greater than 20 percent would not be warranted based on visual impairment as corrected vision is 20/40 or better and there is no contraction or loss of visual field. Additionally, the Veteran’s eye conditions do not cause scarring or disfigurement and Diagnostic Code 7800 is not for application. 

The Board acknowledges that the rating schedule pertaining to diseases of the eye was amended during the appeal period. See 83 Fed. Reg. 15321 (Apr. 10, 2018). Diagnostic Code 6025, however, was not specifically changed. 

Entitlement to a rating greater than 30 percent for asthma

In May 1999, VA granted entitlement to service connection for asthma and assigned a 10 percent rating effective April 30, 1997. The 10 percent evaluation was continued by ratings dated in December 2004, June 2005, and August 2006. 

In November 2015, the Veteran submitted a claim for increase. In May 2016, the rating was increased to 30 percent effective November 2, 2015. The Veteran disagreed with the rating and perfected this appeal. He essentially contends that the currently assigned rating does not adequately reflect the severity of his disability. 

The Board acknowledges that additional relevant evidence (i.e., VA examination) was added to the record following the February 2018 statement of the case addressing the ratings for asthma and pansinusitis with allergic rhinitis. While a supplemental statement of the case was not furnished, these issues were readjudicated in a June 2018 rating decision. Remand for a supplemental statement of the case would serve no useful purpose and is not required. Sabonis v. v. Brown, 6 Vet. App. 426, 430 (1994).

Bronchial asthma warrants a 10 percent rating for FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalation or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalation or oral bronchodilator therapy, or; inhalation antiinflammatory medication. A 60 percent rating is warranted for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parental) corticosteroids. A 100 percent rating is warranted for FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medication. 38 C.F.R. § 4.97, Diagnostic Code 6602. 

The Veteran underwent a VA examination in April 2016. At that time, he reported wheezing, dry cough, and shortness of breath associated with asthma symptoms. He uses his albuterol inhaler 2-3 times per day. He did not require the use of oral or parenteral corticosteroid medications or oral bronchodilators. Post-bronchodilator pulmonary function testing (PFT) showed FVC of 65 percent predicted; FEV-1 of 64 percent predicted; and FEV-1/FVC of 80 percent. The examiner stated that FEV-1 most accurately reflected the Veteran’s level of disability. 

In April 2017, the Veteran underwent PFT at a private hospital. Spirometry revealed mild reduction in FVC and FEV-1 was mildly reduced. There was no improvement with bronchodilator studies. Lung volumes revealed mild reduction in total lung capacity. Diffusion was normal. Specific findings or percentages were not provided but the results were reported as compatible with mild restrictive lung disease. 

In February 2018, the Veteran underwent additional testing. Post-bronchodilator FVC was 74 percent predicted. FEV-1 was 74 percent predicted. FEV-1/FVC was 80 percent. Interpretation was mild restriction. Post-bronchodilator test was not clearly improved. 

In April 2018, the Veteran stated he wanted to claim “[t]aking corticosteroid more than 5 times a month now” as secondary to his asthma. In May 2018, the Veteran clarified that in October 2017 his primary care doctor put him on a corticosteroid for his service-connected asthma. He reported that he takes Symbicort at least 5 times per month. 

On VA examination in May 2018, the Veteran reported shortness of breath and intermittent wheezing. He uses Proventil and Symbicort. The examiner stated that the Veteran’s respiratory condition does not require the use of oral or parenteral corticosteroids. It does require the use of bronchodilator therapy and anti-inflammatory medication, both inhalational. The Veteran had not had any asthma attacks with episodes of respiratory failure or physician visits for required care of exacerbations. Post-bronchodilator PFT results were FVC of 63 percent predicted; FEV-1 of 66 percent predicted; and FEV-1/FVC of 76 percent. The examiner stated that FEV-1 percent predicted most accurately reflected the Veteran’s level of disability. 

On review, the criteria for a rating greater than 30 percent are not met or more nearly approximated at any time during the appeal period. That is, objective findings do not show FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent. Further, the Veteran is not shown to have exacerbations requiring monthly visits to a physician and there is no indication he required intermittent courses of systemic corticosteroids. 

In making this determination, the Board acknowledges the Veteran’s statement concerning the use of corticosteroids. The Veteran is competent to report what medications he takes. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). Objective medical evidence, however, shows that his use of corticosteroids is limited to inhalational therapy. Indeed, the examiners of record specifically stated that his condition did not require the use of oral or parenteral corticosteroids. Diagnostic Code 6602 specifically makes a distinction between the use of systemic versus inhaled corticosteroids. 

The preponderance of the evidence is against the claim for increase and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied. 

Entitlement to a rating greater than 30 percent for pansinusitis and allergic rhinitis

In June 2005, VA granted entitlement to service connection for sinusitis and allergic rhinitis and assigned a 10 percent rating under Diagnostic Code 6513. In August 2006, VA continued the 10 percent rating.

In November 2015, the Veteran submitted a claim for increase. In May 2016, VA increased the rating to 30 percent effective November 2, 2015. At that time, the disability was described as pansinusitis and allergic rhinitis and the increase was assigned under Diagnostic Codes 6522-6510.

Allergic or vasomotor rhinitis is rated as follows: without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side (10 percent); and with polyps (30 percent). 38 C.F.R. § 4.97, Diagnostic Code 6522.

Pansinusitis and maxillary sinusitis are both rated under the General Rating Formula for Sinusitis (General Rating Formula). Under the General Rating Formula, a noncompensable rating is warranted for sinusitis detected by X-ray only. A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Finally, a 50 percent (maximum) rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514). Note to this provision indicates that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.

On VA examination in April 2016, the Veteran reported using fluticasone nasal spray and Zyrtec daily. His allergy symptoms vary depending on the season. Due to current high pollen counts, he reported itchy, runny eyes, sinus congestion and occasional blood tinged mucous coming from his nose. It had been a couple of years since he needed antibiotics. The examiner indicated that the Veteran’s chronic sinusitis was pansinusitis and that he experienced episodes with headaches, pain, tenderness, and purulent discharge. The episodes were non-incapacitating with 7 or more in the last year. There were nasal polyps. 

On VA examination in May 2018, the Veteran complained of crusting and seasonal stuffiness. He continued to take Flonase and Zyrtec. No findings related to sinusitis were noted. The examiner stated that there were no nasal polyps and there was not greater than 50 percent obstruction of the nasal passages or complete obstruction on either side due to rhinitis. The examiner stated that the service-connected sinusitis/pansinusitis apparently had resolved. The Veteran claims to have never had a fever, facial pain, or hospitalization. There was no change to the service-connected allergic rhinitis. 

On review, the Veteran is currently receiving the maximum schedular rating available for allergic rhinitis. Review of VA examinations and outpatient records does not support a rating greater than 30 percent under the General Rating Formula for Sinusitis. That is, there is no indication that the Veteran underwent radical surgery with chronic osteomyelitis nor is there any evidence of near constant sinusitis with symptoms after repeated surgeries. The Veteran’s disability picture is contemplated in the 30 percent rating currently assigned and separate ratings for sinusitis and allergic rhinitis are not warranted. 38 C.F.R. § 4.14.

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Service connection can be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). 

A “qualifying chronic disability” includes an undiagnosed illness or a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i).

The term “medically unexplained chronic multi symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). 

Manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower); sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). 

For purposes of this section, “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(3), (4).

Service connection may also be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b).

Entitlement to service connection for bilateral carpal tunnel syndrome

In March 1998, VA denied entitlement to service connection for numbness of the hands as due to undiagnosed illness. In February 1999, the Veteran submitted a statement wherein he disagreed with the decision denying service connection for illnesses related to his service in the Gulf War, but a statement of the case was not furnished on this issue. On review, the Board considers the February 1999 statement a valid notice of disagreement with the denial of service connection for numbness of the hands as due to undiagnosed illness. As that claim remains pending, it is not necessary to consider whether new and material evidence has been received.

Notwithstanding the fact that the appeal was already pending, in July 2012 VA denied entitlement to service connection for bilateral carpal tunnel syndrome essentially based on findings that the disorder was not shown in service treatment records and was not incurred in service. 

In April 2018, the Veteran requested to reopen his claim, though the Board has found it was already pending. In June 2018, VA determined that new and material evidence had not been submitted to reopen claims of service connection for right and left carpal tunnel syndrome. The Veteran disagreed with the decision and perfected this appeal. 

The Veteran makes the general assertion that his disorder was related to active service. 

Service treatment records are negative for a diagnosis of or treatment for carpal tunnel syndrome. On separation examination in October 1991, the Veteran’s upper extremities were reported as normal on clinical evaluation.  

In June 2003, the Veteran presented to VA for evaluation of intermittent numbness of his upper extremities, the right greater than the left that occurs at night. It was noted that he was a machinist and works on the router. Nerve conduction studies were performed, and impression was bilateral carpal tunnel syndrome, right greater than the left. The Veteran’s symptoms were most likely secondary to carpal tunnel syndrome. 

VA and private medical records continue to show a diagnosis of carpal tunnel syndrome. However, there is no indication of a nexus between the current disability and service.

As carpal tunnel is a known clinical diagnosis, the provisions of 38 C.F.R. § 3.317 are not for application. 

As neither the evidence nor the Veteran indicates that symptoms of carpal tunnel began in and have been continuous since service, service connection is not available on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). Evidence of record does not show carpal tunnel syndrome in service or manifested to a compensable degree within one year following discharge from active duty and presumptive service connection as a chronic disease is not warranted. 38 C.F.R. §§ 3.307, 3.309(a).

The Veteran has not provided any other theory of how he believes his bilateral carpal tunnel syndrome is related to service. A mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). It is also insufficient to trigger VA’s duty to assist by providing a medical examination. Id. at 1278-79.

In absence of any probative evidence linking the Veteran’s bilateral carpal tunnel syndrome to service, the claim must be denied.

Entitlement to service connection for fibromyalgia, also claimed as joint pain and muscle spasm

In March 1998, VA denied entitlement to service connection for joint pain and muscle spasm as due to undiagnosed illness. In February 1999, the Veteran submitted a statement wherein he disagreed with the decision denying service connection for illnesses related to his service in the Gulf War. A statement of the case was not furnished on these issues.

In May 2016, VA determined that new and material evidence had not been submitted to reopen the claim of service connection for muscle spasms. In September 2017, VA denied entitlement to service connection for fibromyalgia. In August 2018, VA determined that new and material evidence had not been submitted to reopen a claim of service connection for joint pain due to undiagnosed illness. The Veteran disagreed with these decisions and perfected this appeal. 

On review, the Board considers the February 1999 statement a valid notice of disagreement with the denial of service connection for joint pain and muscle spasm due to undiagnosed illness. As those claims remain pending, it is not necessary to consider whether new and material evidence has been received. Further, the Board has recharacterized the issue as service connection for fibromyalgia, also claimed as joint pain and muscle spasm. The Board discusses specific joints, muscles/neurological complaints, and diagnosed disabilities corresponding to these symptoms later in this decision.

In a July 2018 statement, the Veteran stated that he had joint pain and arthritis all over his body and thought he had fibromyalgia. Fibromyalgia includes consideration of widespread musculoskeletal pain. See 38 C.F.R. § 4.71a, Diagnostic Code 5025. 

Service treatment records do not show complaints or findings of fibromyalgia. On report of medical history completed at separation in October 1991, the Veteran reported swollen or painful joints. The examiner noted intermittent joint aches. The corresponding physical examination does not include a diagnosis of fibromyalgia. 

The Veteran underwent VA Gulf War general medical examinations in April 2016 and August 2017. Neither these examinations nor outpatient records include a diagnosis of fibromyalgia or chronic disability manifested by joint pain or muscle spasm for which no etiology could be established, and physical examination was normal except as noted on additional questionnaires. VA outpatient and private medical records are also negative for these findings. 

On review, the preponderance of the evidence is against finding that the Veteran’s complaints of joint pain and muscle spasm are related to an undiagnosed illness or a medically unexplained chronic multi symptom illness such as fibromyalgia. In making this determination, the Board acknowledges that the Veteran is competent to report his symptoms of joint and muscle pain and spasm, but he has not established the medical training or experience that would render him competent to diagnose fibromyalgia or provide an opinion on a complex medical question. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence-particularly where complex medical questions or the interpretation of objective medical tests are involved).

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied.

Entitlement to service connection for left ankle and left knee arthritis

In November 2016, the Veteran submitted a claim for “arthritis - active duty - Gulf War”. In December 2016, the Veteran clarified that his arthritis affected his foot and ankle joints, fingers and hand joints, neck, elbows, knees and back. He argued that these conditions started while he was in service and have gotten worse as he gets older.

In March 2017, VA requested examinations specifically addressing whether the Veteran had a diagnosed ankle, back or knee condition with arthritis that was related to an inservice motor vehicle accident. In August 2017, VA denied entitlement to service connection for arthritis, bone spurs. This is a generic denial and it is unclear what arthritic joints the decision refers to. The Veteran disagreed and perfected this appeal. 

Given the examination requests and the fact that the lumbar spine arthritis and right ankle and knee claims are separately adjudicated, the Board has rephrased the issue as stated above. The Board further notes that in an October 2018 notice of disagreement with additional issues, the attorney argued that the left knee should have been inferred. As noted, a formal claim for arthritis has been received.

Service treatment records show that the Veteran’s lower extremities were reported as normal on enlistment examination in March 1982. On October 9, 1991, the Veteran reported he was in an automobile accident where he fell asleep and ran off the road. He said the car overturned once and stayed upside down. He was able to walk away but was complaining of various symptoms including the left knee and ankle. Left ankle x-rays were negative for fracture. Assessment included left knee abrasion and left ankle with anterior talofibular leg strain. Physical therapy consult sheet dated the same day indicates he was provided crutches for left knee/ankle contusion and strain. On separation physical dated October 30, 1991, the examiner noted a resolving left ankle sprain. The Veteran participated in physical therapy and was provided a temporary profile through December 1991.

The record also contains an orthopedics consult request dated October 9, 1991 which notes the Veteran was status post left ankle fracture and open reduction internal fixation in Korea in May 1991 and that he has well placed retained hardware. The Board is unable to find any contemporaneous evidence documenting the noted fracture and surgery. Additionally, left ankle x-rays from October 9, 1991 indicate there was no evidence of fracture or dislocation and the soft tissues were normal. The study was reported as negative and there was no mention of previous fracture or retained hardware. 

The Veteran underwent VA knee and ankle examinations in March 2017. X-rays showed arthritis in the left knee and left ankle. The examiner stated that after reviewing the records, taking a medical history, and performing physical examination, it was at least as likely as not the Veteran’s left knee condition with arthritis was caused by the inservice car accident. Records confirm he was treated for a left knee injury and this type of injury can result in arthritis of the knee. The examiner also stated it was at least as likely as not that the Veteran’s left ankle condition with arthritis was caused by the inservice car accident. Records confirm he was treated for a left ankle injury after the car accident and this type of injury can result in arthritis of the ankle. 

In March 2019, a private physician stated he agreed with the VA examination that found the Veteran’s left ankle impairment as likely as not stems from the motor vehicle accident complications documented from his military treatment records. 

The record does not contain probative evidence to the contrary and service connection is granted for left knee and left ankle arthritis. 

Entitlement to service connection for diabetes 

In August 2017, VA denied entitlement to service connection for diabetes. The Veteran disagreed and perfected this appeal. He generally contends that he has diabetes related to active military service. 

Chronic multi symptom illnesses of partially understood etiology and pathophysiology, such as diabetes, will not be considered medically unexplained. Thus, 38 C.F.R. § 3.317 is not for application. 

Service treatment records are negative for any complaints or findings of diabetes. On separation examination in October 1991, the Veteran’s endocrine system was reported as normal on clinical evaluation and urinalysis was negative for sugar. 

VA record dated in March 2013 documents the Veteran’s report that he was told in June 2012 that his sugar was a little high although he was not diagnosed with diabetes. He reported a family history of diabetes. Diagnostic testing showed abnormal glucose. 

In a November 2016 statement, the Veteran reported he was diagnosed with diabetes earlier in the year and prescribed Metformin. VA records confirm a current diagnosis of diabetes.

On review, diabetes was not shown during service or for many years thereafter and the record does not contain any probative evidence relating the Veteran’s currently diagnosed diabetes to active service or events therein. The Board acknowledges the Veteran’s contentions but he has not established the medical training or experience that would render him competent to diagnose diabetes or provide an opinion as to etiology. Woehlaert.

Evidence of record also does not show diabetes manifested to a compensable degree within one year following discharge from active service and presumptive service connection as a chronic disease is not warranted. 38 C.F.R. §§ 3.307, 3.309(a).

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. 

Entitlement to service connection for a skin disorder claimed as skin cancer and skin tags

In May 2016, VA denied entitlement to service connection for skin cancer due to environmental hazard in the Gulf War. In August 2017, VA denied entitlement to service connection for skin tags/disorder. The Veteran disagreed with both decisions and perfected this appeal. The Board has rephrased the issue as stated above. 

The Veteran generally contends he has a skin disorder, to include skin cancer and skin tags related to active service. In a November 2016 statement, he reported that over the last 10 years he has had skin tags all over his body. He also had a skin cancer removed from his face. He further stated that he has had a lot of dark spots removed and that he still experiences red spots and blotches that periodically show up all over his body. 

Service treatment records are negative for evidence of any chronic skin disorder. On report of medical history completed in October 1991, the Veteran denied having any skin diseases. On corresponding physical examination, his skin was reported as normal. 

VA records dated in April 2012 include an assessment of skin lesion, questionable basal cell carcinoma. Record dated in June 2012 indicates the Veteran had a couple of lesions which had appeared over the last year or so on the legs. Assessment was that both were probably dermatofibromas. In April 2013, the Veteran underwent a VA dermatology consult. Assessment was actinic keratoses, skin tags, and history of skin cancer. 

The Veteran underwent a VA examination in August 2017. He reported that he was seen in the past for spots on both arms and they were frozen off. He reported skin issues on both sides of the neck, shoulder, both arm pits and left lateral thigh. Physical examination revealed skin tags. The examiner opined that it was less likely as not that the Veteran had an undiagnosed illness. Acrochordons (skin tags) are a known clinical diagnosis and very common benign skin growths. It is common for nearly all individuals to develop a skin tag at some time during their lives. Skin tags are associated with older adults, diabetes mellitus, and obesity, and both men and women are affected equally. The examiner noted that according to the VA problem list, the Veteran had diagnoses of obesity and diabetes.

VA record dated in October 2017 notes complaints of lesions on his chin and left toe. Assessment was impetigo on the chin. Record dated in October 2018, indicates the Veteran had a suspicious skin lesion and would need removal and biopsy.

As set forth, the Veteran has been diagnosed with various skin disorders. As these are known clinical diagnoses, the provisions of 38 C.F.R. § 3.317 are not for application. 

The Veteran is not shown to have a chronic skin disorder during service or for many years thereafter. Regarding skin tags, the VA opinion does not relate these findings to active service but rather indicates they are a common occurrence and related to nonservice-connected conditions. This opinion was based on review of the record, physical examination, and is supported by adequate rationale. The Board acknowledges that the VA examiner did not specifically provide an opinion regarding the other skin disorders noted in the record. Notwithstanding, the record contains no probative evidence suggesting a relationship between these disorders and active service and the Board does not find additional opinion warranted. In making this determination the Board acknowledges the Veteran’s contentions but notes he has not established the medical training or experience that would render him competent to provide an etiology opinion on a complex medical question. Woehlaert. 

There is no evidence of skin cancer manifested to a compensable degree within one year following discharge from active service and presumptive service connection as a chronic disease is also not warranted.

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied.

Entitlement to service connection for hypertension

In March 1998, VA denied entitlement to service connection for fluctuating blood pressure as due to undiagnosed illness. In February 1999, the Veteran submitted a statement wherein he disagreed with the decision denying service connection for illnesses related to his service in the Gulf War, but a statement of the case was not furnished on this issue.

In May 2016, VA determined that new and material evidence had not been submitted to reopen a claim of service connection for fluctuating blood pressure due to undiagnosed illness. The Veteran disagreed with the decision and perfected this appeal. 

On review, the Board considers the February 1999 statement a valid notice of disagreement with the denial of service connection for fluctuating blood pressure due to undiagnosed illness. As that claims remain pending, it is not necessary to consider whether new and material evidence has been submitted. Further, the Board has recharacterized the issue as stated above to reflect the diagnosis of record.

The Veteran has been diagnosed with hypertension and thus, 38 C.F.R. § 3.317 is not for application. 

Service treatment records are negative for a diagnosis of or treatment for hypertension. On report of medical history completed at separation in October 1991, the Veteran denied having high blood pressure. On corresponding physical examination, his blood pressure was reported as 130/80. 

In a November 2016 statement, the Veteran reported he has had high blood pressure going all the way back to 1997 or 1998 when he filed his first claim for disability. 

On review, hypertension was not noted during service and by the Veteran’s own statement it was not diagnosed until approximately 5 to 6 years following discharge. The record does not contain any probative evidence relating the currently diagnosed hypertension to active service or events therein. The Board acknowledges the Veteran’s contentions but notes he has not established the medical training or experience that would render him competent to diagnose hypertension or provide an opinion as to etiology. Woehlaert.

Evidence of record also does not show hypertension manifested to a compensable degree within one year following discharge from active duty and presumptive service connection as a chronic disease is not warranted. 38 C.F.R. §§ 3.307, 3.309(a).

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. 

Entitlement to service connection for headaches

In March 1998, VA denied entitlement to service connection for headaches due to undiagnosed illness. In February 1999, the Veteran submitted a statement wherein he disagreed with the decision denying service connection for illnesses related to his service in the Gulf War, but a statement of the case was not furnished on this issue.

In May 2016, VA determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for headaches. The Veteran disagreed with and perfected an appeal of this decision. 

On review, the Board considers the February 1999 statement a valid notice of disagreement with the denial of service connection for headache due to undiagnosed illness. As that claim remains pending, it is not necessary to consider whether new and material evidence has been submitted.

Service treatment records do not show a chronic headache disorder. On report of medical history completed in October 1991, however, the Veteran reported frequent or severe headache. The examiner noted intermittent headaches relieved with ASA. 

A VA treatment record dated in October 2001 indicates the Veteran reported headaches for over 2 years and that Tylenol was no longer effective. Private record dated in April 2002 indicates the Veteran was seen with complaints of a migraine headache for 2 weeks. Assessment was migraine. 

In a June 2004 statement, the Veteran reported that his head gets full of fluid from his sinuses all the time and that is what he thinks is causing a lot of his headaches. 

In June 2010, the Veteran was seen at VA with complaints that he had a headache for more than a year that did not respond to over-the-counter medication. A July 2010 record includes an impression of chronic headache, likely tension. 

A June 2012 VA record documents a reported history of migraines and that the Veteran was experiencing a migraine at his visit. 

An April 2016 VA sinus examination notes headaches attributable to chronic sinusitis. 

In March 2019, a private physician (Dr. H.S.) completed a headaches disability benefits questionnaire. Diagnosis was listed as migraine including migraine variants and tension headaches. In an addendum, Dr. H.S. discussed post-service records showing both migraine and sinus headaches. He also referenced various medical literature discussing the relationship of headaches to sinusitis, asthma, tinnitus, and psychological distress. Based upon review of the claims file, Social Security Administration records, conducting related research, and consultation with the claimant, the physician opined that the Veteran’s headaches were “as likely as not caused and permanently aggravated by sinusitis, asthma, tinnitus, and depression.” He further stated that it was not possible to determine which of the impairments contributed more or less than others and as such, he found “each of these complications as likely as not contribute equally to cause the Veteran’s headaches.”

On review, the above opinion was based on review of the record and consultation with the Veteran. The physician provided sufficient rationale supported by reference to medical literature. Based on the foregoing, the Board finds that secondary service connection is warranted. 38 C.F.R. § 3.310. 

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD

In March 1998, VA denied entitlement to service connection for memory loss and a sleep disorder as due to undiagnosed illness. In February 1999, the Veteran submitted a statement disagreeing with the decision, but a statement of the case was not furnished on these issues. 

In November 2015, the Veteran submitted a claim for PTSD and also requested to reopen claims for memory loss and a sleep disorder. Based on the above, the claims for memory loss and sleep disorder remained pending and a discussion as to new and material evidence is not necessary. In May 2016, VA denied entitlement to service connection for PTSD, also claimed as sleep disorder and memory loss. A claim for nonspecific nervous complaints was also denied. 

In April 2018, the Veteran submitted a claim for anxiety and depression. In June 2018, VA denied entitlement to service connection for an anxiety condition/depression. The Veteran disagreed with the decisions and perfected this appeal. The Board has rephrased the issue as stated above. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record).

Service treatment records are negative for any evidence of a chronic acquired psychiatric disorder. In January 1988, however, the Veteran requested a prescription for Antabuse. On separation examination in October 1991, the Veteran’s psychiatric system was described as normal. On the associated report of medical history, he specifically denied psychiatric symptoms to include depression, excessive worry, or nervous trouble of any sort. 

In a November 2015 VA Form 21-0781, Statement in Support of Claim for PTSD, the Veteran reported that while he was stationed in Saudi Arabia during the Gulf War some of his guards came under attack in the middle of the night. 

On VA examination in March 2016, the Veteran reported he binge drinks on the weekends. He also has difficulty sleeping which results in him feeling tired during the day. The examiner noted the Veteran was screened for PTSD at the VA seven times from 1999 through December 2015, all with negative results. The examiner stated that the Veteran’s symptoms do not meet the applicable criteria for a diagnosis of PTSD. Rather, he had a diagnosis of alcohol use disorder - moderate. 

In November 2018, the Veteran’s mother wrote a statement on his behalf. She stated she noticed a change in him while he was in the service. He was distant and withdrawn over the years. He also had a lot of pain which was frustrating for him and he started drinking. After service he seemed broken and had multiple physical complaints. He developed a short fuse and was frustrated over little things. She reported he was depressed most of the time and his pain really affects him. 

In March 2019, a mental disorders disability benefits questionnaire was completed by a private provider (H. H.-G., PhD, HSPP). She indicated that the Veteran met the diagnostic criteria for major depressive disorder, recurrent, moderate. The examiner indicated that she interviewed the Veteran and reviewed the claims folder. The Veteran reported that his mental health issues began during service. He indicated he was yelled at all the time, constantly around loud noises, could not keep up with physical training, went through a divorce, his grandmother died while he was in Saudi Arabia, and his second daughter was born while he was stationed in Germany. He began feeling depressed and self-medicated with alcohol. The examiner discussed information in the Veteran’s service treatment records, post-service records, and lay statements. Further, she cited to and discussed various medical journal articles detailing the emergence of mental health symptoms in active duty personnel and describing the connection between medical issues and psychiatric disorders. She provided the following opinion: 

Due to the complex overlap of endorsed symptoms it is inconceivable to differentiate specific causation for disability. Therefore, it should be noted that the disease pattern cannot be attributed to one particular medical condition; rather, all conditions (including his non-service-connected back, ankles and knees) may indeed contribute to the overall decompensation and disability of this Veteran. It is the opinion of this expert that [the Veteran] suffers from major depressive disorder more likely than not began in military service, continues uninterrupted to the present and is aggravated by his pansinusitis and allergic rhinitis, asthma, right shoulder labral tear with AC joint arthritis, tinnitus and dry eye syndrome. 

On review, the record does not contain a diagnosis of PTSD. Even the March 2019 private opinion submitted by the Veteran’s attorney does not diagnose the Veteran as having PTSD. Accordingly, service connection for PTSD, also claimed as memory loss and sleep disorder, is not established. 

Regarding major depressive disorder, the record contains a positive nexus opinion. Considering the probative value of the private March 2019 opinion, the examiner interviewed the Veteran and reviewed the claims file. She also discussed the evidence in detail and supported her rationale with citations to medical literature. 

The opinion appears to be based at least in part on the Veteran’s statements that he began experiencing psychiatric symptoms during service. Service treatment records do show he was prescribed Antabuse, but do not otherwise document such complaints and he affirmatively denied psychiatric problems prior to separation. Notwithstanding, he is competent to report this information and the statement from his mother corroborates the onset of symptoms during military service. The opinion also suggests that the major depressive disorder is aggravated by service-connected disability. 

On review, the private opinion is considered probative and service connection for major depressive disorder is warranted. 

Regarding the noted diagnosis of alcohol use disorder, VA’s General Counsel has confirmed that direct service connection for a disability that is a result of a claimant’s own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. VAOPGCPREC 7-99; 64 Fed. Reg. 52375 (1999); Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001). The exception, as explained in Allen, is when a disability like alcohol or drug abuse is secondary to an already service-connected disability. The private examiner did not indicate this as a diagnosis or specifically indicate that alcohol use was secondary to the major depressive disorder for which service connection is being established.

Entitlement to service connection for a gastrointestinal disorder 

In March 1998, VA denied entitlement to service connection for nausea and stomach pain as due to undiagnosed illness. In February 1999, the Veteran submitted a statement wherein he disagreed with the decision denying service connection for illnesses related to his service in the Gulf War, but a statement of the case was not furnished on this issue. On review, the Board considers the February 1999 statement a valid notice of disagreement with the denial of service connection for nausea and stomach pain. As that claim remains pending, it is not necessary to consider whether new and material evidence has been received.

Notwithstanding the fact that the appeal was already pending, in July 2012 VA denied entitlement to service connection for stomach problems due to stomach being moved within the body cavity. While VA acknowledged his symptoms from recent hospitalization, they noted that the condition was not shown in service treatment records and was not incurred in service.

In November 2015, the Veteran requested to reopen his claim for stomach problems and also claimed service connection for diverticulitis related to the Gulf War. In May 2016, VA reopened the claim for diverticulitis, previously claimed as stomach problems, and denied the issue on the merits. The Veteran disagreed with the decision and perfected this appeal. 

The Veteran generally contends he has a gastrointestinal disorder, to include stomach problems and diverticulitis, that is related to active service. 

Service treatment records are negative for complaints or findings of diverticulitis or a chronic stomach disorder and on separation examination in October 1991, the Veteran’s abdomen was normal on clinical evaluation. On the associated report of medical history, he denied any stomach or intestinal trouble. 

VA medical center records show the Veteran was seen for complaints of left sided abdominal pain in October 2010. X-rays showed a distended stomach but were otherwise unremarkable. CT scan of the pelvis noted various findings including descending and sigmoid colonic diverticulosis. Assessment, however, was abdominal pain, likely spasm from distended stomach. 

In a September 2011 statement, the Veteran reported he had x-rays done of his stomach at the VA medical center and the doctor told him that his stomach was sitting sideways, and he was put on medication. 

The Veteran underwent a VA intestinal conditions examination in April 2016. He reported that he developed right lower quadrant abdominal pain and was diagnosed with diverticulitis in approximately 2012-2014. At that time, he was treated with antibiotics which improved symptoms. A subsequent colonoscopy showed polyps which were removed. The Veteran denied that any similar illness occurred during active military duty. He reported chronic abdominal pain and intermittent diarrhea since the diagnosis of diverticulitis. Continuous medication was not required for treatment of this condition. The examiner discussed relevant test results and indicated that an April 2013 CT scan of the abdomen showed mild colonic diverticulosis.

The examiner opined that diverticulitis was less likely than not incurred in or caused by the claimed Gulf War in-service event or illness. In support, the examiner stated that diverticulitis was a disease with a clear and specific etiology and diagnosis. Service records were silent for evaluation and treatment for diverticulitis or similar symptoms. According to the Veteran’s credible history, his first symptoms occurred more than 20 years following his Gulf War deployment. 

As set forth, diverticulitis is a diagnosed disorder with clear and specific etiology and 38 C.F.R. § 3.317 is not for application.

On review, diverticulitis was not noted in service or for many years thereafter and the VA examiner specifically opined that it was less likely than not related to active service. The April 2016 VA opinion was based on a review of the record, physical examination, and is supported by adequate rationale. The record does not contain probative evidence to the contrary. In making this determination the Board acknowledges the Veteran’s contentions but notes he has not established the medical training or experience that would render him competent to provide an etiology opinion on a complex medical question. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Service connection for diverticulitis is thus denied. 

Pursuant to regulation, a qualifying chronic disability includes a medically unexplained chronic multi symptom illness such as functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i)(B). Note to paragraph (a)(2)(i)(B)(3) indicates that functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia.

As noted, the Veteran underwent a VA intestinal conditions examination in April 2016 which did not include a diagnosis of irritable bowel syndrome. More recent evidence, however, shows the Veteran was evaluated by a private physician in July 2018 where he presented with numerous gastrointestinal complaints including abdominal pain, nausea, constipation and change in bowel habits. Assessment was mixed irritable bowel syndrome.

The Veteran is competent to report his symptoms (abdominal pain, nausea, constipation, and intermittent diarrhea) and resolving reasonable doubt in his favor, the Board finds mixed irritable bowel syndrome manifested to a compensable degree. See 38 C.F.R. § 4.114, Diagnostic Code 7319. Accordingly, service connection for mixed irritable bowel syndrome is warranted. 

In May 2016, VA denied entitlement to service connection for unexplained chronic multi symptom illness and diagnosed illness as qualifying chronic disability related to environmental hazard in the Gulf War, and the Veteran perfected an appeal of this decision. The specific disability being claimed is not clear. Given the decision to grant service connection for a medically unexplained chronic multi symptom illness – i.e., a functional gastrointestinal disorder (irritable bowel syndrome), the Board finds that this issue is resolved, and further discussion is not required. 

Entitlement to service connection for a tongue disorder

In June 2018, VA denied entitlement to service connection for a tongue condition. The Veteran disagreed and perfected this appeal. The Veteran generally contends he has a tongue disorder related to active service. 

Service treatment records do not show any chronic disorders of the tongue. On separation examination in October 1991, the Veteran’s mouth was reported as normal on clinical evaluation. 

In a May 2018 statement, the Veteran reported that he was just prescribed a steroid dental paste for oral irritation. Medical records show that the Veteran was seen by a private physician in May 2018. On his medical history form, he reported an aching, burning, painful and sore tongue with symptoms beginning 15 to 20 years ago. Following physical examination, assessment was fissured tongue, geographic tongue, and glossitis. He was prescribed a topical steroid. 

The Veteran’s tongue complaints are related to known clinical diagnoses and 38 C.F.R. § 3.317 is not for application. 

On review, a tongue disorder was not noted during service or for many years thereafter. The Veteran’s reported onset of symptoms is at least six years after separation from service. Further, the record does not contain any probative evidence suggesting a relationship between current diagnosis and active service. The Veteran is competent to report his tongue symptoms, but he has not established the medical training or experience that would render him competent to provide an etiology opinion. Woehlaert.

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. 

Entitlement to service connection for erectile dysfunction

In June 2018, VA denied entitlement to service connection for erectile dysfunction. The Veteran disagreed with the decision and perfected this appeal. He generally contends that service connection is warranted for this condition. 

Service treatment records do not show complaints or findings related to erectile dysfunction. On separation examination in October 1991, the Veteran’s genitourinary system was reported as normal on clinical evaluation. 

On review, the Board is unable to locate a diagnosis of erectile dysfunction in the record. Regardless, the Veteran is competent to report problems obtaining and maintaining an erection. Layno. 

Even assuming a current diagnosis, the record does not contain probative evidence relating it to active service or events therein. The Veteran has not established the medical training or experience that would render him competent to provide a medical etiology opinion. Woehlaert. 

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. 

Compensation under 38 U.S.C. § 1151

An appellant may be awarded VA compensation for a qualifying additional disability caused by VA medical care in the same manner as if such disability were service connected. 38 U.S.C. § 1151. A disability is considered a qualifying disability if it was not the result of the Veteran’s willful misconduct, and if it was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA and the proximate cause of the disability was 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, an event not reasonably foreseeable. Id. 

To determine whether a veteran has additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b).

Claims based on additional disability due to medical treatment must meet certain causation requirements. 38 C.F.R. § 3.361(c), (d). To establish causation, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a veteran received treatment and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). 

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused the additional disability, it must be shown that the medical treatment caused the additional disability; 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 medical treatment without the Veteran’s informed consent. 38 C.F.R. § 3.361(d)(1).

Whether the proximate cause of a veteran’s additional disability 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. 38 C.F.R. § 3.361(d)(2).

Entitlement to compensation under 38 U.S.C. § 1151 for additional disability of the right ankle 

In April 2017, the Veteran filed a claim for compensation under 38 U.S.C. § 1151 for the right ankle. In March 2018, VA denied entitlement to service connection for the right ankle. Although not separately listed, this decision also addressed entitlement to compensation under 38 U.S.C. § 1151. The May 2019 statement of the case also discussed the § 1151 claim and the Board finds it is for consideration.

The Veteran generally contends that his right ankle became worse after his surgery. In a May 2017 statement, he reported that he had right ankle surgery in December 2016 and that he is still having lots of problems with his ankle and foot. He said the doctor prescribed him a walking cane and scooter and he steadily goes for check-ups. 

Evidence of record shows that informed consent was obtained on November 28, 2016 and the Veteran underwent a right ankle arthroscopy with synovectomy and micro drilling on December 6, 2016. A post-operative note authored by the surgeon indicates that there were no complications. The Veteran tolerated the anesthesia and procedure well. Neurovascular status was intact with good perfusion to all digits of the right foot. 

VA podiatry note dated in March 2017 documents the Veteran’s report of about a 10-20 percent improvement since the surgical intervention. A May 2017 note indicates satisfactory progress status post right ankle arthroscopy with micro drilling, although the Veteran did complain of numbness in the digits. 

Even assuming, without conceding, that the Veteran suffered additional disability following the surgery, this is not, in and of itself, enough to establish entitlement to compensation. That is, there must be some instance of fault on VA’s part in furnishing the treatment or an event not reasonably foreseeable. The Veteran has not provided any specific argument in this regard and the record simply contains no probative evidence indicating such. In making this determination, the Board acknowledges the Veteran’s general assertions but he has not established the medical training or experience that would render him competent to provide an opinion on a complex medical question. Woehlaert. 

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. 

Effective dates

The assignment of effective dates for compensation is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a). More specifically, the effective date for an award of disability compensation for service connection is the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400 (b)(2)(i).

A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). 

Effective March 24, 2015, the law no longer allows for informal claims, but the pertinent regulation allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b) (“Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form... [for the] benefit sought within 1 year of receipt of the intent VA will consider the complete claim filed as of the date the intent to file a claim was received.”). If submitted in writing, the intent to file must be submitted on a standardized form. Id. at 38 C.F.R. § 3.155(b)(1)(ii) (mandating that the claim must be “[w]ritten on an intent to file a claim form. The submission to an agency of original jurisdiction of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted an intent to file a claim.”). If not on a standardized Intent to File form, then any communication “is considered a request for an application form for benefits” and has no impact on effective dates, which is governed based upon when the formal claim is received. Id. at § 3.155.

VA will not recognize more than one intent to file concurrently for the same benefit (e.g., compensation, pension). If an intent to file has not been followed by a complete claim, a subsequent intent to file regarding the same benefit received within 1 year of the prior intent to file will have no effect. If, however, VA receives an intent to file followed by a complete claim and later another intent to file for the same benefit is submitted within 1 year of the previous intent to file, VA will recognize the subsequent intent to file to establish an effective date for any award granted for the next complete claim, provided it is received within 1 year of the subsequent intent to file. 38 C.F.R. § 3.155(b)(6). 

Entitlement to an effective date prior to March 20, 2017 for the award of service connection for tinnitus

In September 2017, VA granted entitlement to service connection for tinnitus effective March 20, 2017. The Veteran disagreed with the effective date and perfected this appeal. He generally contends that service connection should be established earlier but has not provided specific argument. 

On review, the Board is unable to locate any intent to file forms (VA Form 21-0966) in the claims folder. The “intent to file” tab in the Veterans Benefits Management System (VBMS), however, indicates when any intent to file were received in this case and their status. 

Review of this tab shows that an intent to file was received on March 20, 2017 with a formal claim being received on March 26, 2017. Review of the formal claim does not include a claim for tinnitus. On April 11, 2017, another intent to file was received. Thereafter, a formal claim was received on August 15, 2017, which includes a claim for tinnitus.

On review, the formal claim received following the March 2017 intent to file did not include tinnitus and thus, the effective date should correspond to the subsequent intent to file. Nonetheless, the Board will not disturb the favorable effective date currently assigned. There is, however, no legal basis for assigning an effective date for the award of tinnitus prior to March 20, 2017. 

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied.

Entitlement to an effective date prior to November 4, 2016 for the award of service connection for dry eye syndrome

In August 2017, VA granted entitlement to service connection for dry eye syndrome effective November 4, 2016. The Veteran disagreed with the assigned effective date and perfected this appeal. He generally contends that an earlier date is warranted but has not offered specific argument. 

Review of the “intent to file” tab in VBMS indicates that an intent to file for compensation was received on November 2, 2015. On that same date, a formal claim was received, which did not include a claim for vision loss or dry eye syndrome. Thereafter, another intent to file was reportedly received on November 4, 2016 with the Veteran’s formal claim for service connection for vision loss being received on received on November 18, 2016 within the one-year appeal period. 

The effective date was assigned based upon the intent to file received November 4, 2016 and the Board finds no legal basis for assigning an earlier date. 

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied.

Entitlement to an effective date prior to December 15, 2017 for the award of service connection for right shoulder labral tear with AC joint arthritis

In January 2018, VA granted entitlement to service connection for right shoulder labral tear with AC joint arthritis effective December 15, 2017. The Veteran disagreed with the effective date and perfected this appeal. He generally contends that an earlier date is warranted for the award of service connection but has not provided specific argument. 

As discussed above, an intent to file for compensation was received on April 11, 2017 with a formal claim following on August 15, 2017. This claim was for fibromyalgia, tinnitus, and lung disease, and did not include reference to the right shoulder. Thereafter, on December 15, 2017, VA received a formal claim wherein the Veteran asserted entitlement to service connection for a right shoulder condition.

The Board acknowledges that the Veteran submitted an intent to file within the one year prior to his formal claim for the right shoulder. The April 2017 intent to file, however, was followed by a complete claim that did not include the right shoulder. The Veteran did not file a subsequent intent to file prior to the formal claim for the right shoulder received on December 15, 2017. Thus, there is no basis for assigning an earlier effective date.

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. 

REASONS FOR REMAND

Entitlement to an initial rating greater than 20 percent for right shoulder labral tear with AC joint arthritis

In January 2018, VA granted entitlement to service connection for right shoulder labral tear with AC joint arthritis and assigned a 20 percent rating effective December 15, 2017. The Veteran disagreed with the rating and perfected this appeal. He generally contends that the assigned rating does not adequately reflect the severity of his disability. 

The Veteran underwent a VA shoulder examination in January 2018. The Veteran reported flare ups which he described as increased pain with any heavy or repetitive overhead use. The examiner stated that pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups, but he was not able to describe in terms of range of motion with resorting to mere speculation. 

On review and with consideration of recent case law, the examination is inadequate and additional examination is needed. Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that examiners must estimate the functional loss that would occur during flare-ups and must name the precipitating and alleviating factors for the flare and estimate “per the veteran” the extent to which flares affect functional impairment).

Entitlement to service connection for right knee and ankle arthritis

In March 1998, VA denied entitlement to service connection for right knee and right ankle conditions as due to undiagnosed illness. In February 1999, the Veteran submitted a statement wherein he disagreed with the decision denying service connection for illnesses related to his service in the Gulf War but a statement of the case was not furnished on this issue.

In March 2018, VA reopened the claim for the right ankle but denied it on the merits. In June 2018, VA denied service connection for right knee condition because the evidence submitted was not new and material. The Veteran disagreed with the decisions and perfected this appeal. 

On review, the Board considers the February 1999 statement a valid notice of disagreement with the denial of service connection for the right knee and right ankle. As the claims remain pending, it is not necessary to consider whether new and material evidence has been submitted.

The Veteran underwent a VA ankle examination in March 2017. The examiner opined that the Veteran’s right ankle condition with arthritis was less likely than not caused by a car accident that occurred during service. The examiner noted there was only one instance of a complaint of right ankle pain. 

The March 2017 VA examiner also provided a negative opinion concerning the right knee condition with arthritis. In support, the examiner stated there were no complaints of right knee pain during active service. Service treatment records dated in February 1983, however, note a complaint of right knee pain after physical training. Assessment was patellofemoral joint syndrome. 

In support of his claims, the Veteran submitted a March 2019 private medical opinion. Dr. H.S. opined that the Veteran’s right ankle condition as likely as not began with the inservice motor vehicle accident. He also found that the Veteran’s right ankle and right knee were as likely as not caused and permanently aggravated by his left ankle complications. The basis for this opinion was that the Veteran had a substantial history of more than 20 years of experiencing antalgic gait with significant limping despite the need for a walking cane for many years. 

On review, the Board does not find the private opinion sufficiently probative to grant service connection. That is, the overall evidence does not support finding a longstanding history of antalgic gait with significant limping. Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Service treatment records show the left ankle sprain was resolving as of the October 1991 separation examination. Post-service records do not show continued complaints related to the left ankle or the need for a cane for many years following discharge. For example, the November 2011 VA spine examination indicates that Veteran did not use any assistive devices. While Dr. H.S. referenced records pertaining to antalgic gait, the Board notes that these are from 2017 and suggest he favored the right side following his right ankle surgery, as opposed to the now service-connected left side. In April 2018, the Veteran underwent a medical evaluation in connection with his claim for Social Security benefits. The physician specifically stated he had no gait disturbance and no limp.

Notwithstanding, the evidence of record is enough to trigger the need for additional VA examination. The VA opinions of record only address whether the claimed conditions were related to the motor vehicle accident and not whether they were related to inservice physical training as asserted by the Veteran. Thus, the examiner should address both direct and secondary service connection. 

Entitlement to service connection for lumbar spine degenerative disc disease

In March 1998, VA denied entitlement to service connection for lower back pain as due to an undiagnosed illness. In February 1999, the Veteran submitted a statement indicating that he disagreed with the denial of his gulf war illnesses. On review, the Board considers the February 1999 statement a valid notice of disagreement with the denial of service connection for lower back pain. As that claim remains pending, it is not necessary to consider whether new and material evidence has been received.

Notwithstanding the fact that the appeal was already pending, in July 2012 VA denied entitlement to service connection for degenerative disease of the lumbar spine (claimed as bone spurs) essentially based on findings that the disorder was not related to active service and there was no evidence to show lumbar spine arthritis manifested to a compensable degree within one year of discharge.

In November 2015, the Veteran requested to reopen his claim, though as stated above the Board considers the original service connection claim to still be pending. In May 2016, VA denied the claim for service connection because the evidence submitted was not new and material. The Veteran disagreed with the decision and perfected this appeal. 

Service treatment records did not show complaints or findings of a chronic low back disorder. The November 2011 examination showed a diagnosis of degenerative disease of the lumbar spine but the VA examiner opined that the Veteran’s low back disorder was not related to the inservice motor vehicle accident. The examiner did not address whether the disorder was otherwise related to active service.

On VA examination in March 2017, the Veteran attributed his back pain to walking around with heavy equipment on his back during physical training and military activities. Additional opinion was not provided.

In support of his claim, the Veteran submitted a March 2019 private medical opinion from Dr. H.S. The examiner opined that the Veteran’s lower back concerns were as likely as not caused and permanently aggravated by his left ankle complications. For the reasons discussed in the prior section, the Board does not find this opinion sufficiently probative to establish secondary service connection. 

Additional VA examination is needed to address all raised theories of service connection. 38 C.F.R. § 3.159(c)(4). 

Entitlement to service connection for neurological disorder of the lower extremities, claimed as nerve damage and nonspecific neurologic complaints

In May 2016, VA denied entitlement to service connection for nonspecific neurologic complaints. In August 2018, VA denied entitlement to service connection for nerve damage. The Veteran disagreed with the decisions and perfected this appeal. The Board has rephrased the issue as stated above.

In a July 2018 statement, the Veteran reported that the location of his nerve damage was his right and left legs and he thought it was sciatic nerve. He also reported issues with his right shoulder, right hand, and right ankle. 

The Veteran is already service connected for the right shoulder. As discussed, service connection for right hand carpal tunnel syndrome is denied and service connection for a right ankle disorder is being remanded. The Veteran’s claim for nerve damage and nonspecific neurologic complaints is intertwined with the remanded claim for service connection for the lumbar spine. In this regard, an April 2018 VA record notes degenerative spinal disease neuropathy. Accordingly, the claim has been recharacterized as stated above and is deferred pending the additional development requested herein.  

Entitlement to service connection for a liver disorder

In May 2016, VA denied entitlement to service connection for a liver condition. The Veteran disagreed with the decision and perfected this appeal. 

The Veteran generally contends he has a liver condition related to active service. 

VA records show the Veteran underwent an abdominal ultrasound in October 2017. Impression included hepatomegaly and fatty infiltration of the liver. An April 2018 record includes an assessment of abdominal pain enlarged liver. He was referred for further evaluation and advised to avoid contact sports, alcohol, and Tylenol. 

In July 2018, the Veteran was evaluated by a private physician for elevated liver function tests. The physician noted progressive hepatomegaly felt to be due to progressive fatty liver and elevated liver enzymes. A liver condition was not diagnosed. Rather, assessment was mixed irritable bowel syndrome

On review, the Board is unable to determine whether the Veteran has a diagnosed liver disorder. Considering his service in the Persian Gulf, the Board finds that a VA examination is warranted. 38 C.F.R. § 3.159(c)(4). 

Entitlement to service connection for a throat condition, to include GERD and dysphagia

In June 2018, VA denied entitlement to service connection for a throat condition. The Veteran disagreed and perfected this appeal. 

In August 2006, VA continued a 10 percent rating for sinusitis and allergic rhinitis (claimed as left submandibular gland swollen, dry cough and sore throat). While it appears that VA considered his sore throat complaints as a symptom of sinusitis, he has never been separately rated for a throat condition. 

In September 2018, the Veteran submitted a claim of entitlement to service connection for GERD and dysphagia. VA subsequently sent the Veteran a letter stating that these issues were inextricably linked to his current appeal pending for a throat condition. Under the circumstances of this case, the Board agrees and has rephrased the issue as stated above. 

Medical evidence shows current diagnoses of GERD and dysphagia. See September 2018 EGD with biopsy. Given the Veteran’s complaints of sore throats during service and reports of chronic cough on report of medical history at separation (both symptoms of GERD), the Board finds that a VA examination is needed to determine whether the disorders are related to active service or caused by, aggravated by, or otherwise are a symptom of service-connected sinusitis with allergic rhinitis. 38 C.F.R. § 3.159(c)(4). 

Entitlement to a total disability rating based on individual unemployability

In July 2019, the attorney submitted a VA Form 21-8940 and requested a total disability rating based on individual unemployability. He argued that this was not a new claim but rather part of the increased rating claims on appeal. The claim for individual unemployability is inferred herein. Rice v. Shinseki, 22 Vet. App. 447 (2009) (A claim of entitlement to a total disability rating based on individual unemployability is “part of,” and not separate from, a claim of entitlement to an increased rating).

The Veteran currently meets the schedular requirements for individual unemployability from December 15, 2017 based on a combined rating of 70 percent. 38 C.F.R. § 4.16(a). This may change depending on the implementation of the grants herein. 

In his application, the Veteran reported that he last worked full-time in August 2016. The Social Security Administration decision indicates that the Veteran’s last day of substantially gainful activity was changed to December 1, 2016. On review, it is not clear exactly when the Veteran last worked full-time and this information should be obtained from his last employer (VA Form 21-4192). 

The Board acknowledges the March 2019 private psychiatric opinion which indicates that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to major depressive disorder. 

Although service connection is established herein for major depressive disorder, a psychiatric disorder is not listed by the Social Security Administration as a severe impairment. Rather, with the exception of asthma, his inability to maintain employment appears largely related to nonservice-connected disorders (GERD, obesity, hepatomegaly, noninsulin dependent diabetes, hypertension, mild degenerative disc disease of the lumbar spine, right hand carpal tunnel, status post right ankle surgery with arthritis, and chronic pain of right knee and ankle). 

The Board observes, however, that claims for several of the currently nonservice-connected conditions are being remanded herein. Accordingly, the individual unemployability issue is deferred pending the requested development. 

The matters are REMANDED for the following action:

1. Obtain the Veteran’s VA treatment records for the period from May 2019 to the present.

2. Contact the Veteran’s former employer (as identified on his VA Form 21-8940) and ask them to complete a VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits.

3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder labral tear with AC joint arthritis. 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. In so doing, 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. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of right knee arthritis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the February 1983 complaints of pain in right knee after physical training (patellofemoral joint syndrome) and/or the Veteran’s reports of marching with a 50-60 pound ruck sack, standing at attention for long periods, physical training, and rappelling from towers and helicopters. 

If the examiner determines the Veteran’s right knee arthritis is not directly related to active service, he/she should opine whether it is at least as likely as not (a) proximately due to, or (b) aggravated by service-connected left knee and left ankle arthritis. 

A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of right ankle arthritis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reports of twisting his ankle while marching in the snow and during physical training.  

If the examiner determines the Veteran’s right ankle arthritis is not directly related to active service, he/she should opine whether it is at least as likely as not (a) proximately due to, or (b) aggravated by service-connected left knee and left ankle arthritis. 

A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of lumbar spine degenerative disc disease. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reports of walking around with heavy equipment on his back during physical training and military activities. 

If the examiner determines the Veteran’s lumbar spine degenerative disc disease is not directly related to active service, he/she should opine whether it is at least as likely as not (a) proximately due to, or (b) aggravated by service-connected left knee and left ankle arthritis. 

A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any liver disorder. The examiner is requested to indicate whether the findings pertaining to the Veteran’s liver, to include hepatomegaly and elevated liver function tests, are due to a known clinical diagnosis or whether they are due to an undiagnosed illness or medically unexplained chronic multi symptom illness. 

If the complaints are related to a known clinical diagnosis, the examiner must opine whether any diagnosis is at least as likely as not related to active service or events therein, to include service in the Persian Gulf. 

A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any throat condition to include GERD and dysphagia. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including complaints of sore throat and chronic cough.

If the examiner determines any diagnosed throat condition is not directly related to active service, he/she should opine whether it at least as likely as not (a) proximately due to service-connected sinusitis with allergic rhinitis, or (b) aggravated beyond its natural progression by service-connected sinusitis with allergic rhinitis.

A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

9. After development has been completed and initial ratings have been assigned, readjudicate the intertwined issues of entitlement to a TDIU and service connection for neurological disorder of the lower extremities.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Carsten, 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.