Citation Nr: 21065816 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-17 729 DATE: October 27, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for transient ischemic attack is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for generalized anxiety disorder is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome, left knee, is remanded. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome, right knee, is remanded. Entitlement to an initial rating in excess of 10 percent from lumbosacral and thoracic strain is remanded. Entitlement to a compensable initial rating for migraine headaches is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a respiratory disability at any time during or proximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a transient ischemic attack or residuals of the in-service episode of subjective complaints of right-sided numbness, neck pain, and arm pain at any time during or proximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for transient ischemic attack have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2012 to August 2017. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In his testimony at the February 2021 Board hearing, the Veteran raised the issue of entitlement to a TDIU as part of the increased rating issues on appeal. Therefore, the issue of entitlement to a TDIU is appropriately before the Board at this time as part of those issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 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). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to service connection for a respiratory disability The Veteran seeks entitlement to service connection for a respiratory disability. At the February 2021 Board hearing, the Veteran testified that he was seen for respiratory issues during his active service. At that time he was diagnosed with exercise- or stress-induced asthma and was provided with an albuterol inhaler. He further testified that he has had respiratory issues since his separation from active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current respiratory disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's service treatment records show that in March 2015, he reported that, for a few minutes following physical training runs, he would of coughing and wheezing that would eventually resolve. His heart and lung examinations, to include a pulmonary function test, were deemed normal at that visit. He was assessed with exercise-induced bronchospasm and asked to followup after his next run the following month. In April 2015, the Veteran again presented with symptoms of exercise-induced asthma. He reported wheezing, congestion, and a nonproductive cough following runs, pushups, and sit-ups. He was provided a trial prescription for albuterol and told to followup as needed. The service treatment records do not show any further treatment for respiratory symptoms. In February 2017, the Veteran denied exertional chest pain or discomfort, or excessive exertional and unexplained dyspnea associated with exercise. On a June 2017 report of medical history for separation from active service, the Veteran endorsed a history of bronchitis, wheezing, and having been prescribed an inhaler, reporting that he had been treated for exercised-induced asthma in March 2015. He had a normal clinical evaluation of the lungs and chest at a June 2017 medical examination for separation from active service. The medical treatment records show that the Veteran denied respiratory symptoms in October 2017, January 2018, July 2018, August 2020, and November 2020. He had normal examinations of the lungs in August 2020, December 2020, and January 2021. A January 2018 VA examiner evaluated the Veteran and determined that, although the Veteran was treated for exercise-induced asthma during his active service, the physical examination at that time was normal, and the Veteran did not follow up and has denied further episodes. On current examination, the Veteran's lungs were clear without wheezing or rhonchi. Therefore, the examiner determined that the Veteran does not now have a diagnosis of a respiratory condition. Thus, the medical evidence of record shows that the Veteran had episodes of exercise-induced asthma in 2015, but that he later denied respiratory symptoms during his active service, he had a normal evaluation of the lungs and chest at the time of his separation from active service, and he had normal examinations of the lungs and/or denied respiratory symptoms at several medical treatment visits after his separation from active service. He also had a normal examination of the lungs at the time of the January 2018 VA examination, and the VA examiner therefore determined that the Veteran did not have a current diagnosis of a respiratory condition. The medical treatment records and the January 2018 VA examiner's findings and conclusions are probative because they were provided by competent medical sources with medical knowledge and training required to assess respiratory disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). In view of the foregoing, the Board finds that the record shows that the Veteran had a respiratory condition at one point doing his active service, but that there is no indication that he has had a respiratory disability at any time during or proximate to the pendency of the claim, to include toward the end of his active service and just prior to the August 2017 claim. In reaching the above conclusion, the Board has considered the Veteran's testimony at the February 2021 Board hearing that he has had respiratory issues since his separation from active service. The Veteran is competent to report symptoms that are readily observable through the senses, such as respiratory symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board does not find the Veteran to be credible in that regard because his statements are inconsistent with the contemporaneous medical evidence of record. Specifically, the post-service medical treatment records show that the Veteran had normal examinations of the lungs and/or denied respiratory symptoms at several medical treatment visits after his separation from active service. Moreover, the medical treatment records, including the service treatment records, do not show that the Veteran complained of respiratory symptoms after his treatment for exercise-induced asthma in 2015. Given the inconsistencies between the Veteran's contemporaneous statements to his treatment providers during the course of treatment, the normal physical examinations of the Veteran, and the later statements made in support of the VA compensation claims, the Board finds the Veteran's testimony at the February 2021 Board hearing to be not credible and, consequentially, not probative. See Pond v. West, 12 Vet. App. 341, 345-46 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). His statements therefore do not weigh against the probative value of the medical treatment records and the January 2018 VA examiner's conclusions. As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a respiratory disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for transient ischemic attack The Veteran seeks entitlement to service connection for transient ischemic attack. At the February 2021 Board hearing, the Veteran testified that he experienced "mini strokes" while on active service, which were diagnosed as transient ischemic attacks based on a CT, an MRI, and blood tests. He believes that the transient ischemic attacks were caused by medications prescribed for his back condition and that he currently has memory issues due to those attacks. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence of record is against finding that the Veteran has had a transient ischemic attack or residuals of the in-service episode of subjective complaints of right-sided numbness, neck pain, and arm pain at any time during or proximate to the pendency of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. The medical treatment records show that in January 2016 the Veteran was seen at an emergency room for right hand, leg, and facial numbness following use of medications for back pain. The initial impression was of a transient ischemic attack. However, no significant abnormality was shown on a CT of the cervical spine, an MRI of the brain showed no intracranial pathology or acute stroke. An ultrasound of the carotid artery was also normal. The final impression given at that visit was of "subjective complaint of right sided numbness and neck pain, arm pain, possible cervical radiculopathy. History of back pain. Overall, his neurologic condition is stable. There is no evidence of stroke." In February 2016, the Veteran reported having more sensation and less numbness on the affected side of the body. The Veteran indicated on the June 2017 report of medical history that he had a transient ischemic attack in January 2016 with continued trouble with memory. However, the Veteran had normal clinical evaluations of the head, face, neck, scalp, upper and lower extremities, skin, and neurological system at the June 2017 medical examination for separation from active service. A January 2018 VA examiner evaluated the Veteran and determined that, although the Veteran was treated for a possible transient ischemic attack with right sided numbness in 2016, neurological workup at that time, to include the CT scan, MRI, and ultrasound, was negative for stroke or transient ischemic attack. In addition, on current examination, the Veteran had no conditions, signs, or symptoms of a central nervous system or neuromuscular disease. He had normal speech, gait, strength, and reflexes. Therefore, the examiner determined that the Veteran does not now have a diagnosis for a central nervous system or neuromuscular disease, and commented that there are "No objective findings related to [transient ischemic attack] or Stroke." Thus, the medical evidence of record shows that the Veteran had an episode of right-sided numbness, neck pain, and arm pain in January 2016, which gradually improved. Testing at the time of the January 2016 episode was negative for stroke. At the time of his examination for separation from active service, he did not have any disabilities associated with the January 2016 episode. He also had normal testing at the time of the January 2018 VA examination, and the VA examiner therefore determined that he did not have a current diagnosis of ischemic transient attack, stroke, or another central nervous system or neuromuscular disease. The medical treatment records and the January 2018 VA examiner's findings and conclusions are probative because they were provided by competent medical sources with medical knowledge and training required to assess conditions of the neurological system. See Nieves-Rodriguez, 22 Vet. App. 295; Prejean, 13 Vet. App. 444. In view of the foregoing, the Board finds that the record shows that during his active service the Veteran did have an episode of right-sided numbness, neck pain, and arm pain, but that the episode was determined not to be a stroke. Furthermore, there is no indication that he has had a disability or symptoms attributable to the in-service episode at any time during or proximate to the pendency of the claim. The Board acknowledges the Veteran's belief that his ongoing memory issues are a result of the in-service episode. The Board finds him competent and credible in his reports of memory problems. However, he is not considered competent to attribute a symptom such as memory issues to the in-service episode of right-sided numbness, neck pain, and arm pain, as doing so requires specialized medical education and the ability to interpret complicated diagnostic medical testing, which the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, his statements in that regard are not entitled to probative value. The Board instead affords probative value to January 2018 and February 2019 VA mental disorders examiners, who attributed the Veteran's mild memory loss to his diagnosed psychiatric disabilities. Those examiners are qualified medical professionals with the knowledge and expertise required to attribute the Veteran's various symptoms to different diagnosed disabilities. See Nieves-Rodriguez, 22 Vet. App. 295; Prejean, 13 Vet. App. 444. In view of the foregoing, the Board concludes that the preponderance of the evidence of record is against finding that the Veteran has had a transient ischemic attack or residuals of the in-service episode of subjective complaints of right-sided numbness, neck pain, and arm pain at any time during or proximate to the pendency of the claim. As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a transient ischemic attack. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran testified at the February 2021 Board hearing that he had an appointment scheduled for March 2021 to undergo hearing testing. A remand is required to allow VA to obtain authorization and request those records. 2. Entitlement to service connection for generalized anxiety disorder is remanded. The Veteran testified at the February 2021 Board hearing that he received mental health counseling during his active service. There are no such counseling records in the service treatment records currently of record. However, records pertaining to the Veteran's reported in-service mental health treatment may have been stored separately from his other service treatment records. A remand is required to attempt to obtain any available in-service mental health treatment records. 3. Entitlement to service connection for a bilateral hip disability is remanded. The Veteran contends that he has a bilateral hip disability that had its onset during his active service or that is secondary to his service-connected lumbar and thoracic spine disability. In December 2017, a VA examiner diagnosed the Veteran with iliopsoas tendonitis of the bilateral hips. However, that examiner did not provide an opinion as to whether that disability may be related to the Veteran's active service or secondary to a service-connected disability. A remand is required to obtain such an opinion. 4. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that he has a cervical spine disability that had its onset during his active service or is secondary to his service-connected lumbar and thoracic spine disability. In December 2017, a VA examiner determined that the Veteran had a normal examination of the cervical spine and therefore declined to provide a diagnosis or nexus opinion as to the Veteran's claimed cervical spine disability. However, a January 2021 X-ray of the cervical spine revealed mild degenerative disc disease with straightening of the normal lordosis. A remand is required to obtain an opinion as to whether the cervical spine disability shown on the January 2021 X-ray may be related to the Veteran's active service or may be secondary to a service-connected disability. 5. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome, left knee, is remanded. 6. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome, right knee, is remanded. The Veteran testified at the February 2021 Board hearing that his bilateral knee patellofemoral pain syndrome has increased in severity since he was last examined by VA and is now manifested by lateral instability. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his patellofemoral pain syndrome of the bilateral knees. 7. Entitlement to an initial rating in excess of 10 percent from lumbosacral and thoracic strain is remanded. The Veteran testified at the February 2021 Board hearing that his lumbosacral and thoracic strain has increased in severity since he was last examined by VA and is now manifested by severe spasms. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his lumbosacral sand thoracic strain. 8. Entitlement to a compensable initial rating for migraine headaches is remanded. The Veteran testified at the February 2021 Board hearing that his migraine headaches have increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his migraine headaches. 9. Entitlement to a TDIU is remanded. The Veteran's education and occupational history is unclear from the record. The Board finds that the issue must be remanded so that the Veteran may be informed of the factors pertinent to establishing a TDIU and to afford him an opportunity to complete a VA Form 21-8940, or otherwise provide a summary of his education and work history. The matters are REMANDED for the following action: 1. Provide the Veteran a letter explaining the factors pertinent to establishing entitlement to a TDIU. The letter must be enclosed with a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability. 2. Ask the Veteran to complete a VA Form 21-4142 for the hearing testing he was scheduled to have in or around March 2021. Make two requests for any identified and authorized records unless it is clear after the first request that a second request would be futile. If additional evidence is obtained that shows the Veteran has a current hearing loss disability as defined in 38 C.F.R. § 3.385, then an opinion should be obtained as to whether it is at least as likely as not (50 percent probability or greater) that the current hearing loss disability is related to in-service noise exposure. For purposes of providing such an opinion, the examiner should accept as true the Veteran's description of in-service noise exposure that he provided at the February 2021 Board hearing. 3. Take appropriate action to attempt to obtain any available in-service mental health treatment records. If after the above actions are taken the record does not show an in-service diagnosis of generalized anxiety disorder or major depressive disorder, then an opinion should be obtained as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current generalized anxiety disorder and/or major depressive disorder had its onset during the Veteran's active service; is otherwise related to an in-service event, injury, or disease; or is caused or aggravated by a service-connected disability. In providing this opinion, the examiner should consider the Veteran's testimony at the February 2021 Board hearing and the June 2017 report of medical history for separation from active service on which the Veteran endorsed excessive anxiety and worry about life outside the military. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the iliopsoas tendonitis of the bilateral hips diagnosed at the December 2017 VA hip conditions examination is at least as likely as not (50 percent probability or greater) related to the Veteran's active service. If not, is it at least as likely as not that the bilateral hip disability is proximately due to or aggravated beyond its natural progression by a service-connected disability, specifically to include the service-connected lumbosacral and thoracic strain? The examiner must consider the Veteran's testimony at the February 2021 Board hearing that he began experiencing problems with his hips six months to one year after he injured his back in December 2015. In considering those assertions, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In determining whether the Veteran's statements are credible, other factors for consideration include internal consistency, facial plausibility, and consistency with other information submitted by or on behalf of the Veteran. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the mild degenerative disc disease and straightening of normal lordosis of the cervical spine shown in the January 2021 X-ray is at least as likely as not (50 percent probability or greater) related to the Veteran's active service. If not, is it at least as likely as not that that mild degenerative disc disease and straightening of normal lordosis of the cervical spine is proximately due to or aggravated beyond its natural progression by a service-connected disability, specifically to include the service-connected lumbosacral and thoracic strain? The examiner must consider the Veteran's testimony at the February 2021 Board hearing that he had neck pain during his active service and has had problems with his neck since his separation from active service. In considering those assertions, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In determining whether the Veteran's statements are credible, other factors for consideration include internal consistency, facial plausibility, and consistency with other information submitted by or on behalf of the Veteran. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected patellofemoral pain syndrome of the left and right knees. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the disabilities under the rating criteria. The examiner should describe any instability the Veteran has in his knees. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected lumbosacral and thoracic strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected migraine headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must address the description the Veteran provided of his headaches at the February 2021 Board hearing. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.