Citation Nr: 21076097 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-33 943 DATE: December 22, 2021 ORDER An initial 30 percent rating for Eustachian tube dysfunction is granted throughout the appeal period. Entitlement to service connection for a genitourinary disability is dismissed. REMANDED Entitlement to service connection for shortness of breath is remanded. Entitlement to service connection for signs or symptoms of a respiratory disability is remanded. Entitlement to service connection for chest pain is remanded. Entitlement to service connection for muscle pain, to include as secondary to service-connected thoracolumbar spine disability and/or adjustment disorder with anxiety is remanded. Entitlement to an initial compensable rating for latent pulmonary tuberculosis is remanded. Entitlement to service connection for a dental disability (claimed as sore gums) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's Eustachian tube dysfunction is manifested by dizziness and occasional staggering. 2. The RO granted service connection for a bladder condition in a September 2020 rating decision. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for Eustachian tube dysfunction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.87, Diagnostic Codes 6299-6204. 2. There being no justiciable case or controversy, the Veteran's service connection claim for a genitourinary disability is dismissed. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1995 to June 1998 and May 2002 to January 2014. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2015 and February 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in March 2019 when they were remanded for additional development. The March 2019 Board remand included the matter of entitlement to service connection for a bladder disability. During the pendency of the appeal, a September 2020 rating decision granted service connection for a bladder condition, rated 0 percent disabling, effective from February 1, 2014. Hence, the matter is no longer on appeal and will not be addressed herein. The Board notes that VA is to construe claims of Veteran's liberally, focusing on the area of the body or description of the condition claimed rather than the specific diagnosis noted by the Veteran. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, to the extent the Veteran filed a claim seeking service connection for sore gums, the Board is liberally construing the Veteran's claim as a claim seeking service connection for a dental disability. 1. Entitlement to an initial compensable rating for Eustachian tube dysfunction. The Veteran's Eustachian tube dysfunction is currently rated 0 percent disabling under 38 C.F.R. § 4.87, Diagnostic Code 6299-6204. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. Under Diagnostic Code 6204, a 10 percent rating is assigned for occasional dizziness. A 30 percent rating is assigned for dizziness and occasional staggering. 38 C.F.R. § 4.87. After a review of the evidence of record, the Board finds that the Veteran warrants an initial rating of 30 percent for his Eustachian tube dysfunction. In this regard, the Board notes that on August 2014 VA ear conditions examination, the Veteran complained of slight unsteadiness lasting a few seconds as if he would fall down with questionable vertigo, along with some lightheadedness after he stands up from doing push-ups and also with quick change of position. In his October 2015 VA Form 21-0958 (Notice of Disagreement), the Veteran indicated that he suffers from occasional dizziness. On February 2020 VA ear conditions examination, the Veteran reported he experiences episodes a few times per month manifested by dizziness and imbalance. It was noted by the examiner that the Veteran's symptoms include vertigo more than once per week and staggering one to four times per month. Notably, Dix Hallpike testing was abnormal as the Veteran needed to rest post-test for a few minutes due to feeling dizziness. Based on the evidence of record described above, the Board finds that throughout the appeal, the Veteran's Eustachian tube dysfunction is characterized by dizziness and occasional staggering. Resolving all reasonable doubt in favor of the Veteran, the Board finds the criteria for an initial rating of 30 percent throughout the appeal period have been met. 38 C.F.R. § 4.87, Diagnostic Code 6204. Inasmuch as maximum is the maximum rating under Diagnostic Code 6204, and the Veteran has not been diagnosed with Meniere's syndrome, there is no evidence of rating criteria for diseases of the ear so as to warrant a rating in excess of 30 percent. 2. Entitlement to service connection for a genitourinary disability. In various statements, the Veteran indicated he was seeking service connection for a genitourinary disability and for a bladder disability. However, the Veteran indicated that he was seeking service connection for voiding dysfunction, specifically urinary frequency. See, e.g., June 2017 VA Form 9. In a September 2020 rating decision, the RO granted the Veteran's claim for a bladder condition and rated the disability as voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7517 (bladder injury, rated as voiding dysfunction). Thus, the Veteran's claim of entitlement to service connection for a genitourinary disability is moot as the benefits sought on appeal are already in effect. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). REASONS FOR REMAND 3. Entitlement to service connection for shortness of breath is remanded. 4. Entitlement to service connection for respiratory signs and symptoms is remanded. 5. Entitlement to service connection for chest pain is remanded. In January 2018 correspondence, the Veteran's attorney stated that the Veteran's claimed shortness of breath, chest pain, and respiratory issues were all symptoms of his diagnosed psychiatric disorder. Notably, the Veteran has established service connection for adjustment disorder with anxiety. To date, there remains no examination or opinion that has addressed the etiology of the Veteran's claimed symptoms/impairment. In light of the evidence presented, the Board finds that the "low threshold" requirement under McLendon v. Nicholson, 20 Vet. App. 79 (2006) is met, and the Veteran should be afforded a VA examination to determine the nature and etiology of his shortness, respiratory signs and symptoms, and chest pain. 6. Entitlement to service connection for muscle pain, to include as secondary to service-connected thoracolumbar spine disability and/or adjustment disorder with anxiety is remanded. In January 2018 correspondence, the Veteran's attorney stated that the Veteran's claimed muscle pain was a symptom of his diagnosed psychiatric disorder. As indicated above, the Veteran has established service connection for adjustment disorder with anxiety. In addition, the Veteran has also claimed that his muscle pain was due to his back disability. The Veteran has established service connection for thoracolumbar spine degenerative disc disease, intervertebral disc syndrome (IVDS) and arthritis (hereinafter referred to as back disability). To date, there remains no examination or opinion that has addressed the etiology of the Veteran's claimed symptoms/impairment. In light of the evidence presented, the Board finds that the "low threshold" requirement under McLendon v. Nicholson, 20 Vet. App. 79 (2006) is met, and the Veteran should be afforded a VA examination to determine the nature and etiology of his muscle pain. 7. Entitlement to service connection for a dental disability (claimed as sore gums) is remanded. As noted above, the Board has recharacterized the Veteran's claim for service connection for sore gums as service connection for a dental disability. In February 2015, the Veteran was afforded a VA oral and dental conditions examination. It was noted that the Veteran had a finding of an oral bone growth but did not have a diagnosis for a dental condition presently. The evidence of record includes VA treatment records showing he underwent removal of bilateral maxillary exostoses in May 2019. Based on the evidence of record, the Board finds that this matter must be remanded for a new examination and opinion, to include whether the May 2019 surgery is related to in-service complaints of sore gums and/or any abnormal findings during service. 8. Entitlement to an initial compensable rating for latent pulmonary tuberculosis is remanded. Respiratory disorders are rated under 38 C.F.R. § 4.97. The Veteran's service-connected latent pulmonary tuberculosis is rated under Diagnostic Codes 6731 (for chronic, inactive, pulmonary tuberculosis) and 6845 (for chronic pleural effusion or fibrosis). Diagnostic Code 6731 directs that inactive pulmonary tuberculosis is to be rated based on residuals, such as interstitial lung disease, restrictive lung disease, or when obstructive lung disease is the major residual, as chronic bronchitis. The Veteran was afforded a VA examination in February 2017. The Veteran denied any current symptoms or complaints. Notably, pulmonary function testing was not performed. Based on the above nonservice-connected respiratory complaints (e.g., shortness breath, chest pain), and in light of the rating criteria for respiratory disorders, the Board finds that this matter must be remanded for another examination to determine the current nature and severity of his service-connected latent pulmonary tuberculosis, to include pulmonary function testing, for proper adjudication of the matter on appeal. 9. Entitlement to TDIU is remanded. Additionally, because the Veteran's TDIU claim is inextricably intertwined with the claims remaining on appeal, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Outstanding treatment records should also be secured, including private treatment records from Kaiser Permanente. The Board notes that it does not appear the Veteran has been provided and requested to submit a VA Form 21-8940. As this matter is already being remanded, the Veteran should be provided a VA Form 21-8940, and requested to submit the completed form and advised that failure to complete and submit the form may result in the denial of entitlement to this benefit. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to specifically include any private treatment records from Kaiser Permanente. 3. Send the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and notice of how to substantiate a claim for TDIU and notify him that the failure to do so may result in the denial of entitlement to this benefit. 4. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's shortness of breath, respiratory signs and symptoms and/or chest pain. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any disability manifested by shortness of breath, chest pain, and/or generalized respiratory signs and symptoms. If no such disability is diagnosed, the examiner should indicate whether the Veteran's symptoms cause any functional impairment. (b) For any disability/functional impairment diagnosed, is it at least as likely as not that the disability/functional impairment is caused by his service-connected adjustment disorder with anxiety? (c) For any disability/functional impairment diagnosed, is it at least as likely as not that the disability/functional impairment was aggravated by his service-connected adjustment disorder with anxiety? A complete rationale should be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is asked to specifically review and consider the submitted treatise evidence as to symptomatology for psychiatric disorders. 5. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's muscle pain. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any disability manifested by muscle pain found. If no such disability is diagnosed, the examiner should indicate whether the Veteran's muscle pain causes any functional impairment. (b) For any muscle pain disability/functional impairment diagnosed, is it at least as likely as not that the Veteran's muscle pain is caused by his service-connected back disability? (c) For any muscle pain disability/functional impairment diagnosed, is it at least as likely as not that the Veteran's muscle pain is caused by his service-connected adjustment disorder with anxiety? (d) For any muscle pain disability/functional impairment diagnosed, is it at least as likely as not that the Veteran's muscle pain was aggravated by his service-connected back disability? (e) For any muscle pain disability/functional impairment diagnosed, is it at least as likely as not that the Veteran's muscle pain was aggravated by his service-connected adjustment disorder with anxiety? A complete rationale should be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's dental disability. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Provide a diagnosis for any dental disability found. Please address the May 2019 removal of bilateral maxillary exostoses. (b) Opine as to whether it is at least as likely as not that any currently diagnosed dental disability had its onset in or is otherwise related to service. In making this finding, the examiner should acknowledge the Veteran's complaints of sore gums during service. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Schedule a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current manifestations and severity of his latent pulmonary tuberculosis. All indicated tests and studies should be conducted, and all findings reported in detail. All opinions expressed should be accompanied by supporting rationale. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.