Citation Nr: 21071204 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-48 109 DATE: November 30, 2021 ORDER Service connection for an eye disorder is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for a left shoulder disorder is denied. Service connection for a skin disorder is denied. Service connection for an anxiety disorder is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran served on active duty from March 2009 to March 2013. 2. An eye disorder, bilateral hearing loss for VA purposes, a left shoulder disorder, and a skin disorder have not been shown. 3. Tinnitus was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; tinnitus is not causally or etiologically related to service. 4. An anxiety disorder was not shown in service, is not causally or etiologically related to service, and is not caused by or permanently worsened in severity by a service-connected disability. 5. The Veteran's combined disability rating is 90 percent; he is not unable to secure or follow a substantially gainful occupation as the result of his service-connected disabilities. CONCLUSIONS OF LAW 1. An eye disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). 2. Bilateral hearing loss was not incurred in service and is not presumed to have been incurred therein. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2021). 3. Tinnitus was not incurred in service and is not presumed to have been incurred therein. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). 4. A left shoulder disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). 5. A skin disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). 6. An anxiety disorder was not incurred in service and is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2021). 7. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Eye Disorder The Veteran contends that he is entitled to service connection for an eye disorder, claimed as floaters. Turning to the medical evidence, a February 2014 VA examination report indicated that there was no diagnosis of an eye disorder. Specifically, the examiner noted that the Veteran had a healthy eye examination and had 20/20 vision in each eye. Further, the clinical treatment records indicate complaints of and treatment for other disorders; however, the medical evidence does not support a current diagnosis of an eye disorder. Accordingly, the first element of service connection, a current disability, is not met and the medical evidence does not support a claim for service connection. Hearing Loss Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores, using the Maryland CNC test, are less than 94 percent. 38 C.F.R. § 3.385. Turning to the medical evidence, in a February 2014 VA examination, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 10 15 LEFT 15 20 20 15 10 The average pure tone threshold was 15 in the right ear, and 16 in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. Accordingly, the results of the February 2014 VA examination did not show bilateral hearing loss for VA purposes. In addition, the clinical treatment records do not show evidence of hearing loss for VA purposes. Further weighing against the claim, a July 2019 treatment note indicated that the Veteran had tinnitus but denied a hearing deficit. As such, the medical evidence does not support a current diagnosis of hearing loss for VA purposes and the first element of service connection has not been met. Tinnitus Turning to the medical evidence, the Veteran denied having tinnitus during a February 2014 audiological evaluation. Subsequent clinical records, including those from 2019, reflect complaints of tinnitus. Therefore, a current disorder has been shown and the first element of service connection has been met. As to in-service incurrence, the service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis of tinnitus. Rather, the Veteran specifically denied tinnitus in January 2010. Further, he did not indicate that he experienced ringing in the ears during a March 2012 post-deployment examination. As the STRs do not show the in-service incurrence of tinnitus, the second element of service connection has not been met. Accordingly, the medical evidence does not support service connection on a direct basis. As to presumptive service connection, no chronic disease or injury related to tinnitus was shown in service. Of note, the Veteran specifically denied tinnitus multiple times throughout service. Further, the Veteran's ears were found to be clinically normal. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the Veteran denied experiencing tinnitus on multiple occasions after separation from service, including during a February 2014 VA examination. The clinical treatment records do not show complaints related to tinnitus until 2019, more than 5 years after separation from service. Therefore, the evidence does not establish that tinnitus has been continuous since service. Further, the disorders did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 2013 but did not note symptoms until 2019. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, the medical evidence does not support presumptive service connection on any basis. Left Shoulder Disorder Turning to the medical evidence, a February 2014 VA examiner found no evidence of a left shoulder disorder. After examination, the examiner indicated that the Veteran had minimal effects on daily activities due to the left shoulder. In addition, he explained that the left shoulder would not significantly limit functional ability during flare-ups or with repeated use. Further, diagnostic imaging from the examination showed a normal left shoulder. As to the clinical records, 2019 VA treatment records reflect complaints of neck and left upper extremity/shoulder pain; however, no diagnosis of a left shoulder disorder has been made. Further, the Veteran is already service connected for cervical spondylosis with left sided neck and trapezius/shoulder pain. As no additional diagnosis of a shoulder disorder has been made, the medical evidence does not support a current disability. Skin Disorder Turning to the medical evidence, a February 2014 VA examiner noted that the Veteran was diagnosed with dermatitis or eczema of the back during active duty in July 2012; however, the condition had since resolved. Specifically, during the examination, the Veteran indicated that rash problems resolved and he had no ongoing skin signs, symptoms, or residuals for at least one year. Further weighing against the claim, January 2017 and August 2019 clinical treatment records show that the Veteran denied skin rashes. Therefore, the medical evidence does not reflect a current skin disorder and the first element of service connection has not been met. Accordingly, the medical evidence does not support service connection. Anxiety Disorder Turning to the medical evidence, a February 2014 VA examination reflected a diagnosis of other specified anxiety disorder. Therefore, a current psychiatric disorder has been shown and the first element of service connection has been met. As to in-service incurrence, the STRs do not reflect complaints of, treatment for, or a diagnosis of a psychiatric disorder. Further, the STRs throughout service reflected that the Veteran was alert and oriented to time, person, and place and his mood and affect were normal. Accordingly, the medical evidence does not reflect the in-service incurrence of a psychiatric disorder. Next, as to secondary service connection, the Veteran has contended that anxiety was proximately due to or the result of sinusitis, radiculopathy, back pain, knee pain, and other musculoskeletal disabilities. Weighing against the claim, a February 2014 VA examiner opined it was less likely than not that anxiety was due to or the result of service-connected disabilities. The examiner explained that the origin of the Veteran's symptoms was related to persistent personality features. Further, he indicated that there was no indication or evidence that anxiety was secondary to any other medical disorders. In addition, the examiner noted that per the original evaluation, the Veteran's worries were related to relational issues and finances. There are no contradicting medical opinions of record. Therefore, the medical evidence does not support service connection on a secondary basis. As to all the service connection claims, the Board has considered the Veteran's lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the current diagnoses or the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals for service connection are denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is service connected for a back disability at 40 percent, radiculopathy of the sciatic and femoral nerves at 20 percent, a knee disability at 10 percent, a cervical spine disability at 10 percent, allergic rhinitis at 10 percent, and sinusitis at a noncompensable rating. His total combined disability rating is 90 percent. As such, he meets the schedular requirements for TDIU. The Veteran contends that he is unemployable due to his disabilities. Clinical treatment records from August 2019 reflected that he was unemployed but was attending college. He had last worked at a local hospital for nearly a year but could not manage the stress of school and work and quit in November 2018. In March 2017, a VA examiner indicated that allergic rhinitis and sinusitis would result in trouble concentrating; however, there was no indication of further functional impact due to these disabilities. The same VA examiner indicated that a cervical spine disability would cause trouble with repetitive movement of the head and neck. In addition, a lumbar spine disability would cause trouble bending, twisting, and sitting for long periods. Next, an August 2019 VA examiner noted that a lumbar spine disability resulted in functional impact due to difficulty with prolonged sitting and standing for more than an hour. Further, the Veteran experienced difficulty driving for long periods of time. In sum, no medical professional has opined that the Veteran is unable to work due to any service-connected disabilities. While his musculoskeletal disabilities, including the lumbar spine and cervical spine disabilities, result in a degree of functional impairment, the combined 90 percent schedular rating compensates him for that functional impairment. Further, the clinical treatment records and VA examinations reflect that the Veteran has been attending college throughout the period on appeal. Specifically, August 2019 clinical records reflected that he was attending college full time and was studying Business Administration. As such, his ability to successfully attend college full-time weighs against the claim that he would not be able to obtain or maintain substantially gainful employment. Also weighing against the claim, the records indicated that the Veteran quit his previous job in November 2018 because he could not handle the stress of working, school, and his child. As such, service-connected disabilities were not the reason that he stopped working. Further, in February 2014, a VA psychiatric examination report showed that the Veteran had obtained several job interviews since separation from service; however, he did not get the jobs because he believed he was too anxious and nervous. As noted above, he is not service connected for anxiety or any other psychiatric disorder. Therefore, anxiety and nervousness may not be taken into consideration for the purposes of TDIU. Based on the above, entitlement to a TDIU is not warranted. In this regard, the medical opinions of record do not opine that the Veteran's service-connected disabilities render him unemployable. Further, the record reflects that he has been successfully attending college throughout the period on appeal and is searching for gainful employment. Therefore, the evidence does not support the claim that he is unable to obtain or maintain substantially gainful employment. The Board has considered the Veteran's lay statements regarding his capacity to work throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran's employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran's service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective evidence of unemployability, and the appeal for TDIU is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kokolas, 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.