Citation Nr: 21067875 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-06 530 DATE: November 5, 2021 ORDER Entitlement to service connection for a cervical spine ("neck") disability is denied. Entitlement to service connection for visual acuity impairment, to include as due to the service-connected traumatic brain injury and/or chemical burns, is denied. Entitlement to a rating of 30 percent, but not higher, for posttraumatic vertigo due to a traumatic brain injury is granted. REMANDED Entitlement to a rating in excess of 30 percent for headaches associated with the traumatic brain injury (TBI), is remanded. FINDINGS OF FACT 1. The Veteran's neck disability is not related to service. 2. The Veteran does not have a current visual acuity disability. 3. The Veteran's posttraumatic vertigo with traumatic brain injury has been manifested by dizziness with occasional staggering. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a visual acuity disability are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 3. The criteria for a rating of 30 percent, but not higher, for the posttraumatic vertigo are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, 4.124a, DC 8045-6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard Reserve from April 1998 to August 2003 which included active duty service from May 1998 to October 1998 and a November 1999 line of duty determination. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 and a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a February 2021 virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. As an initial matter, the Board notes that a March 2017 notice of disagreement (NOD) was submitted for the increased rating for a vertigo disease claim, increased rating for headache claim, and a service connection claim for visual acuity. In a June 2017 NOD the Veteran expressed disagreement with denials of service connection for chemical burns, low to mid back, respiratory issues, bilateral hips, and bilateral foot conditions. In an October 2017 NOD he expressed disagreement with a service connection claim for the neck. In February 2018 a formal appeal to the Board was submitted for the neck issue. In November 2019 the Veteran indicated he wished to have some of his claims processed under the Veterans Appeals Improvement and Modernization Act by properly submitting a VA form 10182. The VA form 10182 listed the low back, bilateral hip, bilateral foot, respiratory, and chemical burns claims. In May 2020 a formal appeal to the Board was submitted for the increased rating for a vertigo disease claim and a service connection claim for visual acuity. Therefore, for purpose of this decision, the Board only has jurisdiction over the increased rating for a vertigo disease claim and service connection claims for visual acuity and a neck disability. As such the Board will proceed with the merits of those issues. As noted above the Veteran properly expressed disagreement for the increased rating for headache claim, however, the RO did not provide a statement of the case (SOC) for that claim. As such, that claim will be discussed in the remand portion below. Service Connection VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Service connection may be granted 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(a). In general, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. For the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a neck disability The Veteran claims he suffers from a neck condition related to his service. Specifically, he alleges while in service he fell from a ladder suffered a neck injury as a result of the fall. The Board finds a medical nexus between the claimed neck disability and active service have not been demonstrated, and that service connection is not warranted. Service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a neck disability. In November 1999 a medical examination for a line of duty determination, indicated the Veteran inhaled fumes and passed out after falling off a ladder. An assessment revealed no injuries, and he was instructed to follow up with a doctor in 2 to 3 days. He was released to full duty. Post service, an August 2017 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with degenerative arthritis of the spine. He alleged the onset of his symptoms began in service. The examiner opined the condition was less likely than not incurred in or caused by the in-service fall from a ladder in 1999. It was reasoned, there is no medical evidence showing neck complaints or evaluation of a neck injury after the incident. The examiner also noted there are no records showing chronological care for the neck complaints since the in-service fall. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the neck disability is not related to service. Initially, the Board notes as contrasted with active duty service, to establish entitlement to service connection for a disability incurred in National Guard or Reserve service, the claimant has the burden to establish not only that there was an injury or disease in service which can later be related to the injury or disease in service, but that he became disabled during a period of active duty for training (ACDUTRA) due to injury or disease incurred in the line of duty, or that he became disabled during a period of inactive duty training (INACDUTRA) due to injury (not disease) incurred in the line of duty. In this case the record reflects periods of ACDUTRA as the Veteran has a November 1999 line of duty determination. As such there is evidence of an in-service injury; however, the weight of the evidence is against a finding that the current neck disability is related to that in-service injury. In this regard the Board finds the August 2017 VA examination discussed above, is the most probative evidence of record. The examiner found the disability was not related to service. It is supported by an adequate rationale, noting "there is no medical evidence showing neck complaints or evaluation of a neck injury after the incident. There are no contrary medical opinions of record. Therefore, the Board finds the August 2017 VA opinion is the most probative evidence. To the extent that the Veteran argues the neck disability is related to the service-connected headaches as a result of TBI, the Board finds the Veteran is not competent to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran's alleged in-service neck condition is in direct conflict with the contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board notes the STRs confirm the Veteran passed out after falling off a ladder; however, a neck injury is not noted. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803 (7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Board notes the STRs reflect various ailment complaints, such as an August 1998 sore throat, left knee pain, and rash complaint, among others. The records indicated the Veteran has complained of ailments during service, however, there are no neck complaints. In fact, after the November 1999 fall the Veteran returned to full duty and no injuries were noted. Therefore, the Board finds the contemporaneous medical records more credible that the Veteran's later assertion of an issue since service. During the February 2021 Board hearing the Representative argued the August 2017 VA examination was inadequate because the examiner did not address the fact that the Veteran's occupation as a "truckdriver isn't one in which there is a reasonable expectation of any sort of neck injuries to occur that could cause degenerative arthritis." However, as noted during the Board hearing, the August 2017 VA examiner did not indicate the neck injury was the result of his occupations. As such, the Board finds this argument is not persuasive. Also, during the February 2021 Board hearing the Veteran indicated upon review of the file he noticed a line of duty statement where the doctor indicated the situation could result in a claim against the government at a later time. That evidence does not support a grant of service connection. Accordingly, service connection for a neck injury is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. 2. Entitlement to service connection for visual acuity impairment The Veteran claims he suffers from a visual acuity disability related to his service. Specifically, he alleges while in service he inhaled chemical fumes before falling from a ladder and that has resulted in a visual acuity disability. The Board finds the Veteran does not have a current visual acuity disability, and that service connection is not warranted. STRs do not reflect any symptoms, diagnosis, or treatment for a visual acuity or eye disability. In March 1998 an examination revealed use of refractive lens. In November 1999 a medical examination for a line of duty determination, indicated the Veteran inhaled fumes and passed out after falling off a ladder. An assessment revealed no injuries, and he was instructed to follow up with a doctor in 2 to 3 days. He was released to full duty. Post service, a June 2016 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The examiner determined the Veteran did not have an eye condition. It was noted the Veteran has no residual problem due to traumatic brain injury and chemical vapor exposure in 1999. Also, the examiner noted the current refractive error is similar to refractive error noted in 1998. A January 2020 VA optometrist visit indicated an evaluation resulted in treatment for the eyes and vision without abnormal findings. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran does not have a current disability. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of a visual acuity disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability "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 and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, for the purposes of service connection, pain alone, without any underlying pathology or disease process, can constitute a current disability if there is objective evidence that the pain causes functional impairment resulting in a decrease of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Here, the totality of the competent evidence does not reflect that the Veteran has or has had a disability related to his eyes. He does suffer from refractive error; however, refractive error of the eye alone is not a disability for VA compensation purposes. See 38 C.F.R. § 4.9. The June 2016 VA examiner gave a probative opinion indicating the Veteran has no residual problem due to traumatic brain injury and chemical vapor exposure in 1999 the current refractive error is similar to the refractive error noted in 1998. There is no medical evidence to contradict this finding, and it is consistent with the Veteran's March 1998 examination which revealed use of refractive lens. While the Veteran states that he has a vision acuity issue related to fumes he inhaled in service, he is not competent to render such an opinion. Again, refractive error of the eye alone is not considered a disability for VA compensation purposes. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's vision problems are related to service, and service connection is therefore denied. Increased Rating 3. Entitlement to a rating in excess of 10 percent for posttraumatic vertigo with traumatic brain injury The Veteran contends his vertigo warrants a rating in excess of 10 percent. During the February 2021 Board hearing the Veteran indicated he falls or stumbles every month, and this has been occurring since 2010. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran's post traumatic vertigo is evaluated at 10 percent effective November 25, 2015 under Diagnostic Code 8045-6204. Diagnostic Code 8045 provides for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/ behavioral, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a, DC 8045. Diagnostic Code 6204 addresses peripheral vestibular disorders and provides for a 10 percent rating for occasional dizziness supported by objective findings and a 30 percent rating for dizziness with occasional staggering. 38 C.F.R. § 4.87 A May 2016 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with TBI and post-traumatic vertigo. He reported having vertigo 3 to 4 times per month, with symptoms lasting for several minutes. An October 2018 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with TBI and post-traumatic vertigo. He reported dizziness when he moves his head back and forth. He also indicated sometimes he feels like he has to maintain his balance. The examiner noted the Veteran has vertigo 1 to 4 times a month lasting less than an hour. During the February 2021 Board hearing the Veteran indicated he has a tingling sensation in his head as a result of the dizziness and vertigo. He alleged he stumbles and falls at least every month due to the vertigo issues. He has been stumbling and falling since 2010. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran's vertigo warrants a 30 percent evaluation. In this case the Veteran is competent to report symptoms such as dizziness, staggering, and loss of balance, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Under Diagnostic Code 6204 a 30 percent rating is warranted for dizziness with occasional staggering. As noted above he testified to falling at least once a month due to his vertigo since 2010. During the October 2018 VA examination he indicated he has to maintain his balance. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's symptomatology warrants a 30 percent disability evaluation. REASONS FOR REMAND 4. Entitlement to a rating in excess of 30 percent for headaches The receipt of a NOD vests jurisdiction with the Board for purposes of ensuring that a SOC is prepared on the issues contained in the NOD. Where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to direct that a SOC be issued. Manlincon v. West, 12 Vet. App. 238, 24041 (1999); 38 C.F.R. § 20.904 (c). In this case a March 2017 NOD expressed disagreement with the evaluation for the service-connected headaches, however no SOC has been provided. As such remand is warranted for a SOC. The matters are REMANDED for the following action: Issue to the Veteran a Statement of the Case for the issue of entitlement to a rating in excess of 30 percent for headaches associated with associated with the traumatic brain injury. In so doing, consider obtaining any ongoing VA treatment records, including Vocational Rehabilitation & Education records; and taking the necessary steps to assist in obtaining the FMLA records regarding the Veteran's headaches. Return the appeal to the Board if, and only if, the Veteran timely files a VA Form 9. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jackman, Associate 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.