Citation Nr: 21073226
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 20-11 390
DATE: December 7, 2021

ORDER

Entitlement to a compensable rating for genital warts is denied.

Entitlement to service connection for vertigo is denied.

Entitlement to service connection for Meniere's syndrome is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. The Veterans genital warts disability does not require continuous treatment. 

2. The Veteran's vestibular disorder, to include vertigo and Meniere's syndrome, was not shown in service or for many years thereafter, and is not otherwise related to active duty service.

3. The Veteran's service connected disabilities alone do not prevent him from securing and following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a compensable rating for genital warts have not been met. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.116, Diagnostic Code 7611.

2. The criteria for entitlement to service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.385.

3. The criteria for entitlement to service connection for Meniere's syndrome have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.385.

4. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.26.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Army from March 1971 to October 1972.

This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2018 Regional Office (RO) rating decision.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994).

When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

1. Entitlement to a compensable rating for genital warts

The Veteran contends that a compensable rating is warranted.

The service-connected genital warts is currently rated as noncompensable under Diagnostic Code 7611 pertaining to disease or injury of the vagina. This diagnostic code is rated under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (Diagnostic Codes 7610 through 7615) which provides for a 10 percent disability rating for symptoms that require continuous treatment and a maximum 30 percent rating for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116.

After review of the evidence, the Board finds that a compensable rating for genital warts is not warranted as the Veteran's disability does not require continuous treatment as required for a 10 percent rating. The Veteran underwent a VA examination in May 2018. The examiner diagnosed genital warts with mild and intermittent pain. The examiner noted that the Veterans genital warts did not require treatment for symptoms. Additionally, the examiner noted that the Veteran is not currently receiving or ever received medication or treatment for her genital warts. There is no lay or medical evidence that the Veteran's genital warts requires continuous treatment and there is no evidence of other treatment for the condition during the claims period. The Board has considered the Veteran's testimony and statements regarding her genital warts, but finds that her genital warts symptoms do not rise to a compensable level. Therefore, the Board finds that a compensable rating is not warranted for the Veterans genital warts and the claim for an increased rating is denied.

Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304.  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 

2. Entitlement to service connection for vertigo

3. Entitlement to service connection for Meniere's syndrome

The Veteran is seeking entitlement to service connection for vestibular disorders to include vertigo and Meniere's syndrome. Specifically, the Veteran contends that her disorders are related to her military service .

While the Veterans October 1972 separation examination reflects ear trouble and the placement of PE tubes in her bilateral ears, the record does not indicate complaints of, symptoms for, or a diagnosis of vertigo or Meniere's syndrome. Of note, the Veteran's October 1972 separation examination and report of medical history do not reveal any signs or symptoms of a vestibular disorder.

The Veteran's post-service medical evidence does not demonstrate any symptoms or a diagnosis of vestibular disorders until approximately 2008. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307 (a)(3).

The Board recognizes the statements from the Veteran regarding her history of symptoms since service. While she is competent to report symptoms such as loss of balance and dizziness, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his disorders have persisted since service, the Board determines that the Veteran's reported history of continued symptoms while competent, is nonetheless insufficient to establish a relationship between her complaints and active service.

Although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorder on appeal, service connection may nevertheless be established if a relationship is otherwise demonstrated by sufficient competent evidence, including medical evidence and opinions.

In this case, the Board places significant probative value on the opinions from the May 2018 VA examiner that performed a detailed review of the Veteran's service and medical treatment records, as well as a comprehensive physical examination. In this case, the examiner opined that the Veteran's vertigo and Meniere's syndrome were not related to service. In support, the examiner stated that the Veterans separation examination is silent for vertigo and there is no documentation of continuity of complaints or chronicity of vertigo dating back to active duty service. Further, the examiner stated that a review of evidence-based medical literature does not support a contention of "ear trouble in 1972", which was treated with PE tubes, as being the cause of vertigo decades later.  The examiner further opined that the Veterans vertigo was not secondary to tinnitus as vertigo is not caused by symptoms, there is usually an underlying medical condition or disease. Therefore, the Veteran's condition of vertigo is less likely than not caused by the condition of tinnitus.

In regard to Meniere's syndrome, the examiner noted that after a review of the medical records and discussion with the Veteran, she did not start treatment for Meniere's disease until the early 2000's and had ear infections that were chronic from childhood until her time in service. The examiner noted that the Veteran stated that the dizziness and hearing loss started after time in service, but her records indicate that the Veteran was evaluated for hearing aids and treated for dizziness and vertigo in March 2007, which these 3 components make up Meniere's syndrome. Therefore, the examiner concluded that the Veteran's current condition of Meniere's disease is less likely than not caused by an in service injury, illness, or event. 

The Board notes that the Veteran did not have any complaints of vertigo or Meniere's syndrome during service or shortly thereafter. In fact, the Veteran only reported symptoms of these disabilities in 2007 more than 35 years after service. Therefore, considering the current nature and severity of the Veteran's vestibular disorders as discussed in the VA examination report, the Board infers that the Veteran's disorder would have manifested earlier if it was in fact related to service. As a result of the foregoing, the Board finds that the Veteran's vestibular disorders are not related to service.

As part of this claim, the Board recognizes the statements from the Veteran regarding the relationship between her vestibular disorders and active service. Nevertheless, while she is competent to provide testimony regarding observable symptomatology such as loss of balance and dizziness, she is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran's vertigo and Meniere's syndrome are found to lack competency.

In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claims of service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied.

TDIU

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019).

Further, the Board should also consider whether given the Veteran's history, education, skill, and training, in conjunction with the Veteran's physical ability and mental ability, can perform the type of activities required by the occupation at issue. See Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b).

4. Entitlement to a total disability rating based on individual unemployability (TDIU) 

The Veteran asserts that she is entitled to a total disability rating based on individual unemployability.  In this case, the Board determines that TDIU is not warranted.

As an initial matter, the Board notes that the Veteran met the schedular requirements for TDIU. Specifically, she is service-connected for the following disabilities: posttraumatic stress disorder (70 percent from November 28, 2011), tinnitus (10 percent from May 24, 2005), bilateral hearing loss (0 percent from October 13, 1972), and genital warts (0 percent from May 13, 2018). As such, she has a combined total combined disability rating of at least 70 percent from November 28, 2011. 

However, the Board finds that the Veteran's service-connected disabilities do not prevent her from securing or following a substantially gainful occupation on a factual basis. See 38 C.F.R. § 4.16 (b). Specifically, she contends that her service-connected PTSD renders her unable to secure substantially gainful occupation.

In this matter, the Veteran maintains social and familial relationships, is capable of managing her own financial affairs, was previously involved in a band as a singer, and is currently involved in three support groups. During her May 2018 PTSD examination, the Veteran arrived on time for her appointment and was casually and neatly dressed in seasonal clothing. The Board finds that while she does have issues with her PTSD, there is nothing to imply that these specific disabilities have interfered with her employability such that she cannot engage in any endeavor.

In regard to the Veterans hearing loss and tinnitus, the June 2018 VA examiner stated that these disabilities impact her ability to work due to constant ear infections and constant ear pain. However, the examiner did not report that these conditions prevented the Veteran from obtaining substantial gainful employment. Further, the Veterans' June 2018 VA examination for genital warts revealed no impact on the Veterans ability to work.

In short, there is simply inadequate evidence at this time to find that her service connected disabilities renders the Veteran unemployable. As such, the Board will decline to refer the claim for further extraschedular consideration. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 510 ; 38 C.F.R. § 3.102.

Accordingly, entitlement to TDIU is denied. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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. 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica