Citation Nr: 21005676 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-08 949 DATE: February 2, 2021 ORDER Entitlement to a compensable disability rating for rib fracture of ribs 9, 10, 11, and 12 (rib fractures) is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to an effective date prior to December 1, 2017 for the grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date prior to December 1, 2017 for the grant of service connection for tinea pedis with onychomycosis is denied. Entitlement to an effective date prior to July 25, 1968 for the grant of service connection for rib fractures is denied. REMANDED Entitlement to a compensable disability rating for bilateral hearing loss is remanded. Entitlement to a compensable disability rating for tinea pedis with onychomycosis is remanded. FINDINGS OF FACT 1. The Veteran does not have one or more removed ribs or resection of two or more ribs without regeneration. 2. The Veteran’s left shoulder disability is not related to an event, injury, or disease during his military service. 3. The Veteran’s neck disability is not related to an event, injury, or disease during his military service. 4. The Veteran filed an intent to file a claim on July 8, 2016. He did not file a complete claim for service connection for hearing loss or tinea pedis with onychomycosis until December 1, 2017. 5. The Veteran separated from active military service on July 24, 1968. The RO granted service connection for rib fractures effective July 25, 1968, the day following separation from active service. This is the earliest effective date allowable under applicable law. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for service-connected rib fractures have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5297. 2. The criteria for service connection for a left shoulder disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a neck disability have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an effective date earlier than December 1, 2017 for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b) (2015), 3.400. 5. The criteria for an effective date earlier than December 1, 2017 for the grant of service connection for tinea pedis with onychomycosis have not been met. 38 U.S.C. § 5110; §§ 3.155(b) (2015), 3.400. 6. The criteria for an effective date earlier than July 25, 1968 for the grant of service connection for rib fractures have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to July 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in November 2020. Rating for Rib Fractures The Veteran’s rib fractures are rated under Diagnostic Code 5297, which provides for a 50 percent rating for the removal of more than six ribs; a 40 percent rating for the removal of five or six ribs; a 30 percent rating for the removal of three or four ribs; a 20 percent rating for the removal of two ribs; and a 10 percent rating for the removal of one rib or resection of two or more ribs without regeneration. 38 C.F.R. § 4.71a, Diagnostic Code 5297. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran underwent a VA examination in February 2018. Examination found no symptoms associated with the disability, and no effect on his daily occupational functioning. It was noted that he recovered well from his in-service broken ribs and had no residuals. The Veteran testified that due to rib and shoulder problems on his left side, including pain and weakness, he has to shift weight to his right side, such as when lifting a 60 pound sack of potatoes. The Board notes that the Veteran broke ribs on his right side during service and he is service-connected for residuals of rib fractures on the right side, not the left. The above testimony appears to be about nonservice-connected symptoms including a left shoulder disability for which service connection is being denied in this decision. The Veteran’s testimony suggests that he is able to lift heavy objects with his right side and that problems occur on his left side. After a review of all the evidence, the Board finds that the weight of the evidence is against the grant of a compensable evaluation for the service-connected rib fractures. The evidence does not show, and the Veteran does not allege, that the service-connected rib fractures resulted in removal or resection of any of his ribs. No such pathology has been found and the Veteran has no impairment as a result of the ribs that were broken during service. In light of the above, the Board finds that entitlement to a compensable disability rating for his service-connected status post rib fracture must be denied. 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5297. Service Connection for Left Shoulder and Neck Disabilities Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has left shoulder and neck disabilities as a result of a Jeep accident during service. Service treatment records demonstrate that the Veteran was involved in a Jeep accident, but there was no report of any injury to the left shoulder or neck. Instead, the treatment records indicate fracture of multiple ribs on the right side of the body as well as hematuria from contusions of the kidney. Service treatment records are silent for any complaints, treatment, or diagnosis of a left shoulder or neck injury during service. Post-service treatment records demonstrate that the Veteran suffers from left shoulder pain and neck pain. The Veteran testified that after his in-service Jeep accident he “had a little problem with [his] shoulder but nothing serious at the time” and that after he was released from service he started having problems with his left side. Sometime later he started having problems with his neck. When asked about neck problems during service, the Veteran testified that he “had minor stuff.” The Veteran has not been afforded a VA examination in connection with his claims for service connection. Generally, a VA medical examination or opinion is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, no examination is necessary as there is no competent evidence suggesting his current left shoulder and neck complaints are related to service, to include the Veteran’s testimony of “little problem… nothing serious” with his shoulder and “minor stuff” with his neck. Notably, no treatment was sought for the left shoulder or neck during service, although other injuries related to the accident were reported. The Veteran testified that his current left-side problems began after service, as opposed to continuing since service, and that his current neck problems began after his left-side problems. Thus, a continuity of symptomatology is not shown. For these reasons, an examination is not necessary and service connection for left shoulder and neck disabilities must be denied. Simply put, there is no nexus to service for either claimed disability. The Board has considered the Veteran’s statements, to include his assertions that he has a left shoulder or neck disability due to the Jeep accident in service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. Service connection for a left shoulder and a neck disability is denied. Effective Dates Generally, the effective date of an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In the past, a claimant could indicate his desire to file a claim for benefits by submitting to VA an intent to file a claim. 38 C.F.R. § 3.155(b) (2015). If VA received a complete application form appropriate for the benefits being sought within one year of receipt of the intent to file a claim, VA would consider the complete claim filed as of the date on which the intent to file a claim was received. Id. 1. Effective date prior to December 1, 2017 for the grant of service connection for bilateral hearing loss and tinea pedis with onychomycosis The Veteran originally filed an intent to file a claim on July 8, 2016. Later that month, VA notified the Veteran that he would need to submit a VA Form 21-526EZ (formal claim) within one year of the July 8, 2016 intent to file or VA would not take further action. He did not file a formal claim for service connection for hearing loss or tinea pedis until December 1, 2017. As the Veteran did not file a formal claim within one year of the date he filed his intent to file a claim, December 1, 2017 is the earliest effective date that can be assigned for the grants of service connection. VA received no other communications from the Veteran that could be considered an earlier claim. 2. Entitlement to an effective date prior to July 25, 1968 for the grant of service connection for rib fractures Under VA regulations, the day following the separation from active service is the earliest allowable effective date for service connection benefits. See 38 C.F.R. § 3.400(b)(2)(i). Here, the Veteran has already been granted the earliest possible effective date under the applicable law and regulations as July 25, 1968 is the day immediately following military separation. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for bilateral hearing loss During the Veteran’s November 2020 hearing, he testified that his hearing has worsened over time. As such, remand is necessary to obtain a new VA examination to evaluate the current symptoms and severity associated with his bilateral hearing loss. 2. Entitlement to a compensable disability rating for tinea pedis with onychomycosis During the Veteran’s November 2020 hearing, the Veteran testified to symptoms that were not noted on his February 2018 VA examination, such as bleeding, peeling, and that the skin condition flares up during certain conditions. As such, remand is necessary to obtain a new VA examination to evaluate the current symptoms and severity associated with his tinea pedis. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for hearing loss and tinea pedis. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records 2. After records development is completed, schedule the Veteran for VA hearing loss and skin examinations to determine the current symptoms, level of severity, and functional impairment associated with his hearing loss and tinea pedis. The claims file should be reviewed by the examiners. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, Attorney Advisor 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.