Citation Nr: 20037379 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-64 660 DATE: June 2, 2020 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a headache disability is granted. Entitlement to service connection for tinnitus is granted. Entitlement to a higher evaluation than 20 percent for residuals of incomplete fracture of the right lateral malleolus is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of hepatitis C but no nexus opinion linking hepatitis C to service or to a service-connected disability. 2. The Veteran has a headache disability that is caused by his service-connected posttraumatic stress disorder. 3. The Veteran reported tinnitus beginning during service and has continued since service. 4. The Veteran does not have ankylosis of his right ankle. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a headache disability as secondary to service-connected PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. Resolving doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107, 7104 (2012); 38 C.F.R. § 3.303 (2019). 4. The criteria for a rating in excess of 20 percent for residuals of incomplete fracture of the right lateral malleolus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from December 1979 to January 1984. The matter is before the Board of Veterans’ Appeals (Board) on appeal of rating decisions of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). When this case was before the Board in August 2018, it was decided in part and remanded for further development. It is now before the Board for further appellate action. In the August 2018 decision, the Board directed the RO to issue a statement of the case (SOC) for Veteran’s claims of entitlement to service connection for a liver condition, increased ratings for bilateral hallux valgus and bilateral hammertoes, and for a temporary total rating due to convalescence from surgery. The RO issued a statement of the case in January 2020 that included these issues as well as entitlement to earlier effective dates for the bilateral hallux valgus ratings and the bilateral hammertoe ratings. The Veteran did not file a substantive appeal in response to this statement of the case. The Veteran also issued a statement of the case for an earlier effective date for the service-connected posttraumatic stress disorder. The Veteran also did file a timely substantive appeal with this SOC. Therefore, these issues are not before the Board. Service Connection 1. Entitlement to service connection for hepatitis C In the January 2020 decision, the Board directed the RO to afford the Veteran an examination and opinion for the Veteran’s hepatitis C disability. A hepatitis C examination was scheduled, and the Veteran was notified. The Veteran failed to report to the examination. When the Veteran fails to report for a scheduled examination in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655 (b). Therefore, the claim will be rated based on the evidence of record. The Veteran has filed a claim for service connection for hepatitis C. The Veteran and his attorney have not provided an argument as to why he is entitled to service connection for hepatitis C. In the August 2018 decision/remand, the Board generously presumed that the Veteran was claiming hepatitis C secondary to drug use secondary to his psychiatric disorder. 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. VA treatment records include a positive test for hepatitis C in January 2010, several years after discharge from his military service. Service treatment records do not show evidence of a hepatitis diagnosis, treatment or symptoms during service. The Board requested an examination and opinions as to whether there was a relationship between hepatitis C, drug use and his service-connected posttraumatic stress disorder. As explained above, the Veteran did not appear for his examination, so no opinion could be obtained. The Veteran has reported that he self-medicated with alcohol and cocaine beginning in the military to cope with his mental health symptoms. See January 2018 Mental Disorders Disability Benefits Questionnaire. Despite this, there is no opinion that links the Veteran’s hepatitis C diagnosis to his drug use during service. There is also no opinion that addresses the probable causes of the Veteran’s hepatitis C diagnosis. The Board attempted to obtain medical opinions in this case, but the Veteran did not appear for the examination. The Board concludes that, while the Veteran has a current disability of hepatitis C, the preponderance of the evidence is against finding that the Veteran’s hepatitis C diagnosis is due to service or proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). 2. Entitlement to service connection for a headache disability In the January 2020 decision, the Board directed the RO to afford the Veteran an examination and opinion for the Veteran’s headaches. A headache examination was scheduled, and the Veteran was notified. The Veteran failed to report to the examination. When the Veteran fails to report for a scheduled examination in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655 (b). Therefore, the claim will be rated based on the evidence of record. Although the Veteran reported headaches from constant beam of sunlight, the enlistment examiner found a normal clinical evaluation of the Veteran. Therefore, the Board does not find that the Veteran had a pre-existing headache disability. In addition, the March 2018 examiner noted that although the Veteran had headaches related to sunlight prior to service, during service his headaches were recurrent headaches outside the context of light sensitivity after sustaining a head injury in service. The November 2014 Headache Disability Benefits Questionnaire (DBQ) show the Veteran has a current disability of post traumatic headaches. In March 2018, the Veteran was diagnosed with tension headaches. Therefore, the record shows that he has a current headache diagnosis that is not a symptom of another disability. In November 2014, the Veteran was afforded a Headache DBQ. At that time, the Veteran was diagnosed with posttraumatic headaches. The examiner opined that it was less likely than not that the Veteran’s headache disability was related to the headache he experienced in March 1982 when he had gastroenteritis with a headache. The examiner noted that the Veteran had been in fight in 1981 during service, but did not provide an opinion as to whether the Veteran’s current headaches were related to his head injury. The March 2018 examiner opined that it is as likely as not that the Veteran’s chronic headaches began in service and are both precipitates and aggravated by his diagnosed major depressive disorder with anxious distress features. At the time of this examination, the Veteran was diagnosed with major depressive disorder with anxious distress features. The Veteran’s diagnosis has since been changed to posttraumatic stress disorder, and he is service-connected for PTSD. However, the RO has used the January 2018 DBQ when rating his PTSD disability which shows that the RO considered all his psychiatric disabilities as one diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board acknowledges that the examiner did not examine the Veteran but instead conducted an interview by phone. Despite this, the examiner appears to have reviewed the Veteran’s treatment records and refers to them in his remark section. In support of his opinion, the physician attached medical articles discussing the relationship between mental disabilities and headache disorders. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current headache disability is due to his military service or caused by his service-connected psychiatric disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a headache disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for tinnitus Tinnitus has been variously defined. It is “a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane”). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). “Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin.” 59 Fed. Reg. 17,297 (April 12, 1994). The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Having reviewed the record pertaining to this claim, the Board has determined that service connection for tinnitus is warranted. In the January 2020 decision, the Board directed the RO to afford the Veteran an examination and opinion for the Veteran’s tinnitus. A tinnitus examination was scheduled, and the Veteran was notified. The Veteran failed to report to the examination. When the Veteran fails to report for a scheduled examination in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655 (b). Therefore, the claim will be rated based on the evidence of record. Evidence in favor of the Veteran’s claim includes a diagnosis of recurrent tinnitus. See December 2019 Hearing Loss and Tinnitus DBQ. During the December 2019 Hearing Loss and Tinnitus DBQ, the Veteran reported that his tinnitus began after his left side of head struck a wall after a fight while on active duty. Also, he noted that he had periodic left-sided tinnitus. Evidence that could be in favor the Veteran’s claim includes a statement by a January 2018 psychologist. He noted that research found tinnitus and hearing loss problems to be a strong predictor of mental illness. The examiner did not provide a specific opinion as to whether the Veteran’s tinnitus was secondary or aggravated by his PTSD. Evidence against the Veteran’s claim includes the December 2019 examiner’s opinion that the Veteran’s Military Occupational Specialty had a low probability of noise exposure. As indicated above, a new examination was scheduled for the Veteran for an opinion linking his tinnitus to service or to his service-connected PTSD, but he did not appear. In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. Here, the Veteran reported that his tinnitus began during service during a fight and was followed by periodic left-sided tinnitus, the Board finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether the Veteran’s tinnitus is related to service. Therefore, having resolved doubt in favor of the Veteran, service connection for tinnitus is granted. Increased Rating Claims 4. Entitlement to a higher evaluation than 20 percent for residuals of incomplete fracture of the right lateral malleolus The Veteran contends that he is entitled to a higher rating than 20 percent for his residuals of incomplete fracture of the right lateral malleolus. The Veteran’s residuals of incomplete fracture of the right lateral malleolus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Veteran’s code also indicates that the Veteran’s diagnosed condition is not listed in the Ratings Schedule and is evaluated by analogy. 38 C.F.R. § 4.20. Because the Veteran’s specific condition is not listed in the diagnostic code, the Board is able to consider other diagnostic code for the ankle. In the December 2019 Disability Benefits Questionnaire (DBQ), the examiner diagnosed the Veteran with degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Traumatic arthritis will be rated as degenerative arthritis under Diagnostic Code 5010. The Veteran’s disability is currently rated as 20 percent disabling under DC 5271. Therefore, a rating under Diagnostic Code 5010 for traumatic arthritis would not allow for a higher rating. Also, allowing for a rating under DC 5010 in addition to a rating under DC 5271 would be considered pyramiding as DC 5003 notes that a disability should be rated under limitation of motion of the appropriate diagnostic code for that specific joint. If it is rated as noncompensable, then a rating is allowable under DC 5003 and DC 5010. The Veteran currently is assigned a 20 percent evaluation under limitation of motion of the ankle. In order for the Veteran to receive a higher evaluation for his ankle disability, the evidence would have to show ankylosis of his ankle. The December 2018 Ankle DBQ examiner found no ankylosis in his ankle. As the Veteran is in receipt of the highest schedular rating for limited motion of the ankle, there is no basis to award a higher rating. Even considering all diagnostic codes for the ankle, the Veteran is at the maximum rating for an ankle without ankylosis. See 38 C.F.R. § 4.71a. As the Veteran already has the maximum schedular disability rating, the appeal is denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.