Citation Nr: 21063582 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 15-03 986 DATE: October 14, 2021 ORDER Service connection for tinnitus is denied. Service connection for an irregular walk is denied. REMANDED Service connection for a lipoma or liposarcoma of the right shoulder is remanded. Entitlement to a rating in excess of 30 percent for right carpal tunnel syndrome (CTS) with median/ulnar nerve entrapment neuropathy is remanded. Entitlement to a rating in excess of 10 percent for right wrist post-traumatic degenerative arthritis is remanded. Entitlement to a compensable rating for a residual scar of the right hand is remanded. Entitlement to a compensable rating for a residual facial laceration scar is remanded. Entitlement to an effective date earlier than August 1, 2017 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's current tinnitus is related to active military service or had its onset within one year thereafter. 2. The preponderance of the evidence is against finding that the Veteran has an irregular walk that is related to active military service or events therein. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). 2. The criteria for establishing service connection for an irregular walk have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from February 1972 to February 1976. These matters are on appeal from March and May 2013 rating decisions. In a June 2018 decision, the Board remanded the issues being decided below to attempt to obtain additional records. The Agency of Original Jurisdiction (AOJ) has done so. The Board therefore finds that there was substantial compliance with the remand directives with regard to the issues being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded a claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. However, in a January 2018 rating decision, VA granted service connection for unspecified trauma and stressor related disorder with amphetamine type substance abuse disorder, moderate, in remission. The Board does not appear to have been aware of that decision, which rendered this issue no longer before the Board, at the time of the June 2018 remand, which was therefore in error. The disability rating and effective date of service connection for the Veteran's psychiatric disability are part of a separate appeal that is not currently before the Board. The Board also remanded a claim for entitlement to a TDIU. In a June 2020 rating decision, VA granted a TDIU, effective August 1, 2017. The issue of entitlement to a TDIU prior to August 1, 2017 remains before the Board. The Veteran's attorney submitted two Notices of Disagreement (NODs) in June 2013. In these NODs, the Veteran's attorney has generally raised the issue of the adequacy of the VA examinations. He does not raise any specific objection to any particular examination. He also refers to VA's "obvious failure" to afford the Veteran a VA examination without identifying the claim to which this refers, but requested an examination with regard to the right shoulder lipoma claim earlier in the NOD; the Board has found below that an examination is warranted for that claim and is remanding the claim for that reason. He contends that VA examiners did not consider functional loss due to fatigue, pain, and weakness caused by repetitive use and movement and that examinations are inherently flawed because they reflect "an isolated snapshot of his physical condition in a pristine environment when he was under no ordinary, everyday physical stress." The Board finds that the VA examiners considered functional loss due to the factors listed by the Veteran's attorney and that the examiners noted and considered the Veteran's reports regarding his day to day functioning. In addition, the Veteran's attorney contends, without explanation, that failures asserted in the NODs rise to the level of a denial of procedural due process protections. Because this is a boilerplate contention, the Board finds it does not raise any issue with the duty to notify or assist. The Board also notes that the Veteran's attorney, in the January 2015 substantive appeal (VA Form 9), sought to preserve for appeal any "failure to discharge the duty to assist." In an April 2015 statement, the Veteran's attorney made a similar statement with regard to the duty to assist. However, neither the Veteran nor his attorney have raised any specific issue with the duty to notify or duty to assist with regard to the claims being decided below other than those referenced above. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of an "organic disease of the nervous system" to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is an "organic disease of the nervous system" and is subject to presumptive service connection under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. Thus, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran had the disability for which service connection is sought at any time during the period on appeal. In the absence of proof of a disability during that period, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). 1. Tinnitus The Veteran contends that his tinnitus was caused by noise exposure during his active duty service. The Veteran's service treatment records contain no mention of tinnitus. In his March 2011 claim, the Veteran reported that he had been diagnosed with tinnitus but made no contentions as to onset of symptoms or nexus to service. The Veteran was afforded a VA examination in June 2011 with an audiologist. On examination, the Veteran's hearing was normal. He discussed the circumstances of his in-service noise exposure and also reported civilian occupational and recreational exposure after his separation from active duty service. He could not recall the onset of his tinnitus but estimated it to be ten to fifteen years prior to the examination, which would be in approximately 1996-2001. The onset was gradual and not linked to any particular event. The clinician opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of in-service noise exposure because of the long period between in-service exposure and onset, his current normal hearing, post-service noise exposure, and the presence of other risk factors for tinnitus including cigarette smoking and caffeine use. The Veteran was afforded an additional medical opinion in March 2012 by a different VA audiologist. The examiner stated that after reviewing the claims file and taking into account the Veteran's reported history, he agreed with the June 2011 clinician's opinion. In the June 2013 NOD, the Veteran's attorney discussed the Veteran's in-service noise exposure and reported an in-service head injury. The attorney added that the Veteran "did not know about 'tinnitus' in service and only learned about it recently" and that he "does recall having difficulty hearing after his loud noise exposures while in service, and thinks this was tinnitus." In an April 2015 statement, the Veteran's attorney provided further details about the Veteran's in-service noise exposure but no further contentions regarding onset or continuity. The Veteran was afforded an additional VA examination in January 2018 with an audiologist. On examination, the Veteran's hearing was again normal. He reported that he first noticed tinnitus about 20 years prior to the examination, which would be in approximately 1998. The clinician opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of noise exposure or his in-service head injury during active duty service because it did not have its onset for decades thereafter. The June 2011 VA examiner's rationale against a finding of service connection is convincing and the record contains no medical opinion to the contrary. Furthermore, although the Veteran would be competent to report continuity of symptoms for service connection on a presumptive basis as a chronic disease, he has consistently reported that his symptoms did not have their onset until more than twenty years after his separation from active duty service. The only evidence of onset in service is the Veteran's attorney's contention in the June 2013 NOD; because this statement is contrary to the Veteran's reports to VA examiners both before and after the NOD, this likely represents the attorney's interpretation of the Veteran's reports and not the report itself. Even if it is an accurate interpretation of the Veteran's report, that report would only establish the existence of symptoms in service. The record contains no evidence of continuity of symptoms between separation from active duty service and the late 1990s. Therefore, this presumption is inapplicable in the current case. Because the preponderance of the evidence is thus against finding that the Veteran's tinnitus is etiologically related to his active duty service or had its onset within one year thereafter with continuity to the present, entitlement to service connection for tinnitus is denied. 2. Irregular Walk The Veteran contends that he has an irregular walk that is etiologically related to his active duty service. VA received the Veteran's claim for service connection in September 2011. In his September 2011 claim, the Veteran reported that he had an irregular walk but provided no further details regarding its nature or onset. In February 2012, the Veteran submitted a statement from his older brother, who reported that he had an irregular walk upon his return from active duty service but did not report an irregular walk during the period on appeal. The Veteran was afforded a VA examination for peripheral nerve conditions in February 2012. On examination, the Veteran's gait was normal. In a June 2013 NOD, the Veteran's attorney referenced the claim for service connection for an irregular walk and then described an in-service injury, but the only current symptom he reported in connection with this injury was back pain. The attorney added that the Veteran "is unable to describe his symptom as 'irregular walk.'" A November 2016 VA treatment record in preparation for surgery to remove a supraclavicular lipoma noted the Veteran's gait as normal. Several VA psychiatric treatment records have also noted the Veteran's gait as normal. The Veteran's lumbosacral strain is already service-connected and its disability rating and effective date are part of a separate appeal that is not currently before the Board. In his August 2017 claim for service connection for a low back injury, the Veteran also claimed service connection for "lower extremity radiculopathy (irregular walk)." To the extent that this represents a contention that the irregular walk claim refers to radiculopathy, the radiculopathy claim is also part of a separate appeal that is not currently before the Board. The Veteran was afforded an additional VA examination for peripheral nerve conditions in January 2018. On examination, the Veteran's gait was normal. The record contains no medical evidence of a gait abnormality during the period on appeal. The Veteran is competent to report on matters observed or within his personal knowledge, such as an irregular walk. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, although the Veteran is competent to report an irregular walk, he is not competent to provide an opinion as to whether this symptom warrants any medical diagnosis. The Board must determine on a case-by-case basis whether a particular medical issue is within the competence of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to diagnose himself with any particular disability manifested by an irregular walk. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran contends his walk is irregular and that this constitutes a disability, it is not a competent medical opinion and it cannot be assigned any probative weight. The Board finds that the VA examiners' and treatment providers' findings of a normal gait are of greater probative value than the Veteran's lay assertions. Pain can be a disability in certain circumstances. To establish a disability, the Veteran's pain must amount to functional impairment. To establish the presence of a left calf disability, the Veteran needs "...to show that [his] pain reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-1368 (Fed. Cir. 2018). However, even if the Board were to find that the Veteran's walk is irregular and to extend this principle to that walk, the record does not show, nor has the Veteran contended, that his irregular walk causes a functional impairment of earning capacity. Id. The record does not contain any competent, probative evidence that the Veteran has been diagnosed with or treated for an irregular walk by any examiner or treatment provider during the period on appeal. Additionally, the Veteran has not reported that his irregular walk causes functional impairment. As the evidence does not establish that the Veteran had a disability manifested by an irregular walk during the period on appeal, the Board finds that service connection is not warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,"); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). REASONS FOR REMAND 1. Service connection for a lipoma or liposarcoma of the right shoulder is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). In a February 2012 statement, the Veteran reported that the physician who had treated his lipoma told him that it was caused by blunt trauma. The Veteran's attorney has submitted articles on the relationship between blunt trauma and lipomas. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. This evidence meets that threshold, and an examination is necessary. 2. Entitlement to a rating in excess of 30 percent for right CTS with median/ulnar nerve entrapment neuropathy is remanded. The Veteran was last afforded a VA examination for his service-connected right CTS with median/ulnar nerve entrapment neuropathy in February 2012, more than nine years ago. The record thus raises the possibility that the Veteran's service-connected right CTS with median/ulnar nerve entrapment neuropathy could now be more severe than the February 2012 examination report reflects. "Where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted." Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A remand for a new examination is thus warranted. 3. Entitlement to a rating in excess of 10 percent for right wrist post-traumatic degenerative arthritis is remanded. The Veteran was last afforded a VA examination for his service-connected right wrist post-traumatic degenerative arthritis in February 2012, more than nine years ago. The record thus raises the possibility that the Veteran's service-connected right wrist post-traumatic degenerative arthritis could now be more severe than the February 2012 examination report reflects. A remand for a new examination is thus warranted. 4. Entitlement to a compensable rating for a residual scar of the right hand is remanded. The Veteran was last afforded a VA examination for his service-connected residual scar of the right hand in February 2012, more than nine years ago. The record thus raises the possibility that the Veteran's service-connected residual scar of the right hand could now be more severe than the February 2012 examination report reflects. A remand for a new examination is thus warranted. 5. Entitlement to a compensable rating for a residual facial laceration scar is remanded. The Veteran was last afforded a VA examination for his service-connected residual facial laceration scar in February 2012, more than nine years ago. The record thus raises the possibility that the Veteran's service-connected residual facial laceration scar could now be more severe than the February 2012 examination report reflects. A remand for a new examination is thus warranted. 6. Entitlement to an effective date earlier than August 1, 2017 for the grant of a TDIU is remanded. VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2021). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran's current combined disability rating prior to August 1, 2017 is 40 percent: his right CTS with median/ulnar nerve entrapment neuropathy is rated 30 percent disabling, his right wrist post-traumatic degenerative arthritis is rated 10 percent disabling, and his scars have noncompensable ratings. The criteria for consideration of a schedular TDIU are not met. If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The issue of the Veteran's entitlement to a TDIU prior to August 1, 2017 is inextricably intertwined with the CTS increased rating claim. In addition, in an April 2015 statement, the Veteran's attorney contended that the only work for which the Veteran has received extensive training is as an electrician and that he can no longer safely hold tools. In the interest of avoiding the need for future remands, the AOJ should also refer the Veteran's claim to consider an extraschedular TDIU. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his lipoma or liposarcoma of the right shoulder. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current lipoma or liposarcoma of the right shoulder had its origin in service or is related to the Veteran's active service. The clinician is advised that a disability is "current" if present at any point since VA received the Veteran's claim, which for this issue was on September 20, 2011. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. September 1973 service treatment records noting an injury to the Veteran's right shoulder. b. A March 2005 private treatment record describing the removal of a liposarcoma of the right supraclavicular area. c. The Veteran's spouse's September 2008 statement reporting that the Veteran had been reporting shoulder pain since she had met him over 30 years prior. d. The Veteran's October 2008 Notice of Disagreement (NOD) in connection with a prior appeal, reporting continuity of right shoulder symptoms since an in-service injury and that a physician had told him in 2005 that the mass in his shoulder was likely due to an old injury. e. A statement VA received from the Veteran in February 2012 in which he reported that the physician who removed the liposarcoma in 2005 "indicated this was caused from blunt trauma, which happened in the same accident as the facial lacerations." f. A February 2012 VA treatment record noting a benign fatty tumor in the Veteran's right shoulder and subsequent records regarding its growth and treatment, leading to excision of the lipoma in December 2016. g. Articles submitted by the Veteran's attorney in August 2017 regarding a relationship between lipomas and blunt trauma. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his right carpal tunnel syndrome with median/ulnar nerve entrapment neuropathy. The electronic claims file and a copy of this remand must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected right carpal tunnel syndrome with median/ulnar nerve entrapment neuropathy. 3. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his right wrist post-traumatic degenerative arthritis. The electronic claims file and a copy of this remand must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected right wrist post-traumatic degenerative arthritis. 4. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his residual scar of the right hand. The electronic claims file and a copy of this remand must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected residual scar of the right hand. 5. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his residual facial laceration scar. The electronic claims file and a copy of this remand must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected residual facial laceration scar. 6. If a TDIU prior to August 1, 2017 would still be extraschedular, refer the Veteran's TDIU claim to the Director of the Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16 (b). 7. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 8. Then, readjudicate the claims, including the TDIU claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.