Citation Nr: 21006115 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-37 501 DATE: February 3, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for hepatitis A and B is denied. Entitlement to service connection for fatigue, to include as secondary to coronary artery disease (CAD), is denied. Entitlement to service connection for dizziness, to include as secondary to CAD, is denied. Entitlement to a rating higher than 30 percent for CAD is denied. Entitlement to an initial compensable rating for a left big toe ingrown toenail is denied. REMANDED Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) on extraschedular basis is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the diagnosed lumbar spine disability is related to active duty service and/or caused or aggravated by a service-connected disability. 2. The Veteran’s hepatitis A is not active, not chronic, and not related to his military service. 3. The Veteran has hepatitis B antibodies but no active infection or manifestations of chronic liver disease; there is no competent evidence relating the hepatitis B to his military service. 4. The Veteran does not have a disability manifested by fatigue or a diagnosis of chronic fatigue syndrome; his fatigue is a symptom of the already service-connected CAD. 5. The Veteran does not have a disability manifested by dizziness and his reported dizziness is a symptom of his already service-connected CAD. 6. For the entire rating period on appeal, the Veteran’s CAD did not result in more than one episode of acute congestive heart failure in a year, a workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. 7. The left big ingrown toenail is resolved and is essentially asymptomatic. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria to establish service connection for hepatitis A and B are not met. 38 U.S.C. §§ 1110, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria to establish service connection for fatigue are not met. 38 U.S.C. §§ 1110, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2019). 4. The criteria to establish service connection for dizziness are not met. 38 U.S.C. §§ 1110, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2019). 5. For the entire rating period on appeal, the criteria for a rating higher than 30 percent for CAD are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005 (2019). 6. For the entire initial rating period on appeal, the criteria for a compensable rating for left big toe ingrown toenail are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5299-5282 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to October 1972. In November 2018, the Board remanded the appeal for further development. The appeal has since returned to the Board for further appellate consideration. Service Connection – Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Arthritis is considered a “chronic” disease under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the ‘chronic’ disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Lumbar Spine Disability The Veteran generally asserts that his lumbar spine disability is related to service or his service-connected CAD/ingrown toenail. In the June 2017 substantive appeal, the Veteran indicated that he hurt his back in Vietnam carrying heavy artillery. He added that his ingrown toenail caused limping and back pain for many years. The Veteran is currently diagnosed with multilevel spondylosis of the lumbar spine (i.e., degenerative arthritis). See e.g., September 2019 VA examination report. However, the Veteran’s service treatment records are silent for any back complaints, treatment, or diagnosis. The October 1972 separation examination report indicates a normal evaluation of the spine and the Veteran did not report any back problems at that time. There is no evidence of chronic symptoms of arthritis of the back in service or continuing symptoms of such since separation from service. As indicated, there was no mention of back problems in the service treatment records. The post-service medical and lay evidence is negative for any back problems until July 2015, at which time, VA chest x-rays showed an incidental finding of degenerative changes of the spine during assessment of the chest. Thus, the first evidence of arthritis was not shown until 2015, over four decades after separation from active duty. There is no lay nor medical evidence showing that symptoms of back arthritis have been continuous since separation from active duty. The Board does not challenge the credibility of Veteran’s lay report of an in-service low back incurrence; however, as noted above, he specifically denied having any problems at the time of separation, and the first notation of a back disability was due to incidental finding shown decades after service and not due to a back complaint. Accordingly, service connection on a presumptive basis is not warranted. There is also no competent evidence of a nexus between the current back disability and service. In September 2019, the Veteran underwent a VA examination, at which time the examiner confirmed diagnoses of lumbar spine spondylosis/multilevel degenerative arthritis. After review of the record and examination of the Veteran, the examiner opined that it was less likely than not that the Veteran’s back disability had its onset during service or otherwise related to it. The examiner explained that there was no objective evidence of any treatment even ten years after service, suggesting that any back injury in service as a result of carrying heavy artillery was acute and transitory and resolved. The examiner further explained that the Veteran’s diagnosis of lumbar spondylosis is a chronic condition that progressively worsens over time with the natural aging process and/or due to repetitive trauma. The examiner stated that the Veteran’s diagnosis has a long-standing process that was more likely than not caused by age, obesity, and occupational history, all which predisposed the development of lumbar spine degenerative joint/disc disease. The examiner added that medical literature supported that a lumbar spine condition was part of normal aging process in patient older than 40 years old. The Veteran’s lay statements have also been considered. He is competent to report having back pain as a result of service. However, he is not competent to relate his medically complex spinal disorder to his military service because he is not shown to possess the requisite medical knowledge, training, or experience to do so. Moreover, a mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). On the contrary, the Board assigns higher probative weight to the 2019 examiner’s opinion. The examiner explained that even accepting the Veteran’s lay reports of an injury he sustained during service, the evidence as a whole does not reflect that such injury resulted in chronicity of care but rather suggests that the arthritis is age-related. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary competent opinion of record. The Board finds that the probative medical evidence outweighs the lay assertions in this case. There is also no competent evidence of nexus between the current lumbar spine disability and a service-connected disability. In this regard, the VA examiner opined that the Veteran’s diagnosed lumbar disability is not physiologically or anatomically related to his service-connected CAD or ingrown toenail. Contrary to the Veteran’s reports of limping, the examiner noted that there was no objective evidence of an antalgic gait pattern or weight shift during the physical examination. The examiner opined that the lumbar condition was not caused by, aggravated by, or otherwise related to his service-connected disabilities. The weight of the competent and credible evidence demonstrates no relationship between the Veteran’s diagnosed lumbar spine disability and active duty service or a service-connected disability. For these reasons, the Board finds that a preponderance of the evidence is against the claim, on direct, presumptive, and secondary bases, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Hepatitis A and B The Veteran seeks service connection for hepatitis A and B. He initially stated that the disabilities were caused by a blood transfusion in Vietnam. He reported to a VA examiner that in the 1980s, he wanted to donate blood for his friend and within two weeks was told that the blood was not accepted because he tested positive for hepatitis. He indicated that he did not receive a referral for any treatment. However, according to a January 2017 Report of General Information, he reportedly contracted hepatitis A and B from a blood transfusion after his tour in Vietnam. Yet, in the June 2017 substantive appeal, the Veteran indicated that his physician at the VA told him that the condition was due to his time in Vietnam when soldiers often donated blood and had “uncounted numerous sexual activities.” The Veteran has current diagnoses of hepatitis A and B. See e.g., September 2019 hepatitis VA examination report. However, his service treatment records are silent for claimed blood transfusion or any injury requiring a blood transfusion. Moreover, the Board finds inconsistencies in the Veteran’s statements with regard to the onset of his hepatitis. Although the Veteran is competent to report that he underwent a blood transfusion in service, the Board finds the report not credible. First, as indicated, there is no evidence in the service treatment records of having received a blood transfusion in service or of an injury requiring a blood transfusion in service. Second, during the pendency of the appeal, the Veteran has changed his theory of how he contracted hepatitis A and B. He initially stated that hepatitis was contracted from a blood transfusion after service, but then stated it was due to unprotected sexual activities during service. The inconsistencies in his assertions lessens the probative value of his reports. The Veteran’s hepatitis A and B were diagnosed decades after service. Moreover, there is no competent evidence of a nexus between the hepatitis infections and service. The Board carefully reviewed available VA treatment records and finds no notations even suggesting a link between the two. Additionally, a September 2019 VA examiner, a medical doctor, determined that the claimed disabilities are less likely as not related to service. The examiner stated that the Veteran did not have active hepatitis A or B. The examiner explained that hepatitis A does not cause long-term liver damage, is not chronic, and is acquired from contaminated food or water or close contact with a person who is infected. Hepatitis B antibodies were present, but as noted, there was no active infection and examination revealed no signs or symptoms of chronic liver infectious disease at the time; his condition was stable. The examiner found no evidence to support the Veteran’s claim. The Board assigns great probative weight to the 2019 VA examiner’s opinion. The examiner reviewed the record and examined the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion of record. For the reasons expressed above, the Board finds that the Veteran’s statement that the hepatitis A and B are related to service not credible. Moreover, as a layperson, he is not competent to relate his hepatitis to his military service because he does not possess the requisite medical knowledge, training, or experience to do so. The Board finds that the probative medical evidence outweighs the lay assertions in this case. The weight of the competent and credible evidence demonstrates no relationship between the Veteran’s hepatitis A and/or B and his active duty service. For these reasons, the Board finds that a preponderance of the evidence is against the claim, and it must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Fatigue and Dizziness The Veteran asserts that he has currently diagnosed disabilities manifested by fatigue and dizziness as a result of his service-connected CAD. In this case, a review of the medical evidence of record fails to show the presence of a current disability that is productive of claimed symptoms aside from the already service-connected CAD. In September 2019, the Veteran underwent a VA examination for chronic fatigue syndrome during which he reported that he had constant fatigue and dizziness that was worse with walking long distances. The examiner determined that there is no objective evidence of chronic fatigue syndrome during the examination and noted that the Veteran had never been diagnosed with such. The examiner concluded that the Veteran did not meet the criteria for a diagnosis of chronic fatigue syndrome. In September 2019, the Veteran also underwent a VA heart examination. The examiner, a medical doctor, determined that the Veteran’s symptoms of fatigue and dizziness were related to his heart disability. Specifically, the examiner noted that shortness of breath would develop if the heart could not pump enough blood to meet the body’s need and eventually cause fatigue of dizziness. The examiner noted that the Veteran’s METs level was higher than 7 to 10 and symptoms attributed to this METs level were fatigue and dizziness. In analyzing this claim, the Board recognizes that the Veteran is competent to report his observable symptoms and signs of dizziness and fatigue; however, his lay statements are not competent to establish that he has a current disability manifested by dizziness and/or fatigue, as he is not shown to be competent to render a medical diagnosis. Moreover, the record reflects that his complaints of dizziness and fatigue are attributed to and are being compensated for by his receipt of service connection for CAD. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Given the absence of currently diagnosed disability manifested by fatigue and/or dizziness aside from the service-connected CAD, the threshold element of the claim is not met. As the preponderance of the evidence is against the Veteran’s claim, it therefore must be denied. Increased Rating Claim – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). CAD In this case, the Veteran’s CAD is assigned a 30 percent rating under DC 7005 for evidence of a workload of greater than 5 METs but not greater than 7 METs, with dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent rating is warranted where there is evidence of more than one episode of acute congestive heart failure in the past year; workload greater than three METs but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or LVEF of 30 to 50 percent. A 100 percent rating requires evidence of chronic congestive heart failure; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or LVEF of less than 30 percent. 38 C.F.R. § 4.104. In April 2016, the Veteran underwent a VA heart examination, at which time the examiner confirmed a diagnosis of CAD. The Veteran reported that he had chest pain but that he was active and exercised on a treadmill one to three times a week. He mowed the lawn and was sexually active. The examiner noted that a November 2015 echocardiogram showed evidence of left ventricular ejection fraction (LVEF) higher than 55 percent. An exercise-stress test in June 2015 showed evidence of ischemia and a METS level of 10.4, and a workload greater than seven but not greater than 10 pursuant to an interview-based METs test. The only symptoms noted during activity was fatigue. The examiner indicated that the interview-based METs test was the most accurate reflection of the Veteran’s current cardiac functional level. In October 2016, the Veteran underwent an additional VA heart examination. The Veteran reported dyspnea on exertion due to moderate effort such as climbing three flights of stairs or mowing the lawn. An interview-based METs test during this examination revealed workload greater than seven but not greater than ten. The only symptom noted during activity was dyspnea. The examiner stated that the 2015 exercise stress test was the most accurate reflection of the Veteran’s current cardiac functional level. In the June 2017 notice of disagreement, the Veteran indicated that his heart disability resulted in dizziness, fatigue, and angina. In the June 2017 substantive appeal, the Veteran stated that his METs level was less than five as a result of fatigue, dizziness, and angina. In September 2019, the Veteran underwent an additional VA heart examination. The Veteran reported episodes of shortness of breath and fatigue on exertion. He also noted episodes of dizziness that lasted for fifteen seconds to one minute. An interview-based METs test revealed a workload greater than seven but not greater than 10 as a result of fatigue and dizziness. The Veteran’s LVEF based on an August 2019 echocardiogram was 55 to 60 percent. On review, the Board finds that a rating higher than 30 percent is not warranted at any point during the pendency of the appeal. There is no evidence that the Veteran has been diagnosed with congestive heart failure during the appeal. Further, the Veteran’s METs were estimated to be greater than seven but not greater than 10 throughout the pendency of the appeal; this estimation does not even meet the criteria for the already assigned 30 percent rating. Significantly, the rating criteria specifically contemplates symptoms of dyspnea, fatigue, angina, and dizziness. The Board recognizes the Veteran’s assertion that his METs levels are not greater than five, but the medical evidence does not support this assertion. The Veteran in this case is not shown to possess the necessary medical expertise to estimate his current METs level. Lastly, there is no evidence of more than one episode of acute congestive heart failure or LVEF of 30 but not higher than 50 percent. Accordingly, a rating higher than 30 percent is not warranted. Ingrown Toenail The Veteran’s left big toe ingrown toenail is assigned a noncompensable rating pursuant to DC 5299-5282. The hyphenated code indicates that the Veteran’s disability is an unlisted condition that has been rated by analogy as hammer toe. See 38 C.F.R. § 4.20. Under Diagnostic Code 5282, a noncompensable rating is warranted for hammer toe on single toes; and a 10 percent rating is warranted for hammer toe on all toes, unilateral without claw foot. In October 2016, the Veteran underwent a VA skin examination, at which time the examiner confirmed a diagnosis of big toe ingrown toenail. The Veteran stated that, in 1970, he developed bilateral ingrown toenails. He underwent surgery with removal of bilateral big toenails. The examiner noted that the Veteran had absence of the right big toenail and partial growth of the left big toenail. The skin condition caused no functional impact. In December 2016, the Veteran underwent an additional VA skin examination, at which time the examiner diagnosed a resolved left big ingrown toenail. The Veteran reported that he only had surgical intervention of the left big toenail in service and that there was no change or growth of the left toenail since that time. He mentioned that the left big toenail grew and fell off every once in a while. He received no treatment for the condition. The examiner noted that the Veteran’s left toenail was hypertrophic and not ingrown. In September 2019, the Veteran underwent an additional VA skin examination. The Veteran reported that his left toenail continued to grow the same way as before. He added that the toenail grew and resolved by itself without taking any medication for it. The examiner concluded that the ingrown toenail condition had resolved. There were no signs or symptoms relevant to this condition. Based on a careful review of all the lay and medical evidence, the Board finds that throughout the initial rating period on appeal, the Veteran’s service-connected left big toe ingrown toenails does not warrant a compensable rating. In other words, the Veteran’s left big ingrown toenail does not manifest hammer toe on all toes, unilateral without claw foot. Rather, the medical evidence reveals that the Veteran had no signs or symptoms associated with the ingrown toenail and it has resolved. Furthermore, the Veteran did not even report any recurring ingrown toenail. All VA examiners concluded that the condition resolved. Therefore, the Board finds that there is no basis upon which to award a compensable rating for left big ingrown toenail under Diagnostic Code 5282. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019), the Federal Circuit held that when rating foot conditions not listed in the Rating Schedule, VA must consider analogous ratings under Diagnostic Code 5284, for other foot injuries, even when other listed, service-connected foot disabilities are present. In this case, the Board has considered whether any other relevant diagnostic codes, including Diagnostic Code 5284, may afford the Veteran a compensable evaluation for his ingrown toenail. However, given that the clinical evidence found no pathology to support a diagnosis of ingrown toenail and there was no other symptomatology identified, the Board finds that there are no other applicable diagnostic codes. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). REASONS FOR REMAND A remand is necessary to determine whether entitlement to a TDIU on an extraschedular basis is warranted. The Veteran does not meet the schedular criteria for entitlement to a TDIU; however, medical and lay evidence throughout the pendency of the appeal suggests the he was unable to maintain gainful occupation as a result of his service-connected CAD. Accordingly, referral for extraschedular consideration is warranted. The matter is REMANDED for the following action: Refer the Veteran’s TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.