Citation Nr: 21007004 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-49 065 DATE: February 8, 2021 ORDER Entitlement to service connection for a heart disability, to include as secondary to service-connected tinnitus and/or pseudofolliculitis barbae (PFB) is denied. Entitlement to service connection for gout, to include as secondary to service-connected tinnitus and/or pseudofolliculitis barbae (PFB) is denied. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected tinnitus and/or pseudofolliculitis barbae (PFB) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s heart disability is not secondary to service-connected tinnitus and/or PFB and is not otherwise related to an in-service injury or disease. 2. The Veteran’s gout is not secondary to service-connected tinnitus and/or PFB and is not otherwise related to an in-service injury or disease. 3. The Veteran’s acquired psychiatric disorder is not secondary to service-connected tinnitus and/or PFB and is not otherwise related to an in-service injury or disease. 4. The Veteran’s service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability due to service or service-connected tinnitus and/or PFB are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 2. The criteria for service connection for gout due to service or service-connected tinnitus and/or PFB are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 3. The criteria for service connection for an acquired psychiatric disorder due to service or service-connected tinnitus and/or PFB are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 4. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 7104 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from February 1980 to March 1984. This case comes before the Board on appeal from a May 2014 rating decision. In February 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via a live video conference. A transcript of the proceeding has been associated with the record. This case was previously before the Board in February 2019, where the issues on appeal were remanded for further evidentiary development. Service Connection Generally, to establish service connection a Veteran must show: “(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 or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2019). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). 1. Entitlement to service connection for a heart disability, to include as secondary to service-connected tinnitus and/or pseudofolliculitis barbae (PFB) Here, the Veteran contends that his heart condition was incurred in service or secondary to his service-connected tinnitus and/or PFB. Based on a preponderance of evidence, the Board disagrees. At the outset, the Veteran has a current diagnosis of cardiomyopathy. See April 2019 VA examination. The Veteran reported a history of shortness of breath on exertion onset in 2013. The Veteran added that he had SOB on exertion and bilateral ankle swelling, but no chest pain. Thus, the first element of service connection is met. However, the second element of direct service connection is not met. Specifically, the Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of a heart condition. The Board notes that the Veteran indicated that he had pain or pressure in his chest on his separation examination in January 1984. The examiner indicated that the chest pain was non-exertional but did not provide a diagnosis. Conversely, the second element of secondary service connection is met. The Veteran is service-connected for tinnitus and PFB, which he claims has caused or aggravated his heart condition. Therefore, to warrant secondary service connection there must be medical evidence of a nexus or link between the Veteran’s cardiomyopathy and his service-connected tinnitus and/or PFB. In that regard, in the October 2020 medical opinion, the examiner opined that the Veteran’s heart condition was less likely than not proximately due to or aggravated by his service-connected tinnitus and/or PFB. The examiner reasoned that cardiomyopathies are diseases of heart muscle in which the heart muscle is structurally and functionally abnormal in the absence of coronary artery disease, hypertension, valvular disease, and congenital heart disease sufficient to explain the observed myocardial abnormality. The examiner continued that tinnitus is a perception of sound in proximity to the head in the absence of an external source. Tinnitus can be unilateral or bilateral and can be triggered anywhere along the auditory pathway. It is believed to be encoded in neurons within the auditory cortex. He explained that the majority of patients have “sensorineural” tinnitus due to hearing loss at the cochlea or cochlear nerve level. PFB is a persistent irritation caused by shaving. Curly hair tends to curl into the skin instead of straight out the follicle, leading to an inflammation reaction. Simply put, ingrown hairs and tinnitus due to middle/inner ear or afferent nerve pathology have not been found to structurally alter heart muscle which define cardiomyopathy. The examiner added that with an actual defined pathophysiologic mechanism between these pathologies, it is not reasonable to conclude that aggravation of the cardiomyopathy beyond its natural progression has occurred. The Board finds that examiner’s opinion to be competent, credible and highly probative. The examiner reviewed the pertinent record, accounted for the Veteran’s lay statements and provided an opinion based on medical principles and the evidence. The Board acknowledges the Veteran’s contentions, but the Veteran does not have the requisite expertise or medical training to link his cardiomyopathy to his service-connected tinnitus/PFB. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 2. Entitlement to service connection for gout, to include as secondary to service-connected tinnitus and/or pseudofolliculitis barbae (PFB) Here, the Veteran contends that his gout was incurred during service or secondary to his service-connected tinnitus and/or PFB. Based on a preponderance of evidence, the Board disagrees. At the outset, the Veteran has a current diagnosis of gout. He had gout in his hands in 1990 while in Atlanta, where he was treated with “gout pills.” The Veteran reported that he had gout flare-ups in his big toes, ankles, wrists, and knees for years. He mentioned that he had a flare-up several times a year. He explained that his gout limited his daily activities. Thus, the first element of direct and secondary service connection is met. However, the second element of direct service connection is not met. Specifically, the Veteran’s STRs are silent for any complaints, treatment, or a diagnosis of gout. The Veteran marked “yes” to swollen or painful joints on his separation examination; however, the examiner indicated that the Veteran’s shoulder and back pain were related to his neck pain. Moreover, the Veteran marked “no” to arthritis or rheumatism and there was no indication of joint pain or swelling in his hands, wrists, toes, or knees. Thus, the second element of direct service connection is not met. Conversely, the second element of secondary service connection is met as the Veteran is service-connected for tinnitus and PFB. Therefore, to warrant secondary service connection there must be medical evidence of a nexus or link between the Veteran’s gout and his service-connected tinnitus and/or PFB. In that regard, in the April 2019 VA examination, the examiner opined that it was less likely than not that the Veteran’s gout was caused or aggravated by his tinnitus and/or PFB. The examiner explained that PFB is a common dermatologic condition in which hairs grow back into the skin causing inflammation and foreign body reaction; whereas, tinnitus is a symptomatic of ringing in the ears. He continued that gout is a form of arthritis caused by excess uric acid in the bloodstream, thus it is less than 50 percent likely that gout is related to or aggravated by tinnitus or PFB. The Board finds that examiner’s opinion to be competent, credible and highly probative. The examiner reviewed the pertinent record, examined the Veteran, accounted for his lay statements then provided an opinion based on medical principles and the evidence. The Board acknowledges the Veteran’s contentions, but the Veteran does not have the requisite expertise or medical training to link his gout to his service-connected tinnitus/PFB. See 38 C.F.R. § 3.159 (a)(2). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 3. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected tinnitus and/or pseudofolliculitis barbae (PFB) Here, the Veteran contends that his acquired psychiatric disorder was incurred in service or secondary to his service-connected tinnitus and/or PFB. Based on a preponderance of evidence, the Board disagrees. At the outset, the Veteran has current diagnosis of unspecified bipolar and related disorder. In the April 2019 VA examination, the psychologist, L.O., explained that the Veteran’s episodes of psychosis are only explained in the lay statement provided by his former wife, as he had no recollection of the events. The Veteran’s first psychotic break occurred in 2013 and included delusions of grandeur. L.O. commented that there was no known percipient such as identifiable manic or depressive episode, but the Veteran described some depressive symptoms during the examination that appeared chronic. Thus, the first element of service connection is met. The second element of direct service connection is not met. The Veteran’s STRs are silent for any complaints, treatment, or a diagnosis of a psychiatric disorder. In fact, in the January 1984 separation examination, the Veteran’s psychiatric system was indicated as normal. Additionally, he marked “no” to frequent trouble sleeping, depression or excessive worry, loss of memory, or nervous trouble of any sort. Thus, the second element of direct service connection is not met. Conversely, the second element of secondary service connection is met. As shown above, the Veteran is service-connected for tinnitus and PFB, which he claims caused or aggravated his psychiatric condition. Therefore, to warrant secondary service connection there must be evidence of a nexus or link between the Veteran’s psychiatric condition and his service-connected tinnitus and/or PFB. In that regard, the examiner opined that the Veteran’s psychiatric condition was less likely than not incurred in service or caused or aggravated by his tinnitus and/or PFB. The psychologist explained that the Veteran was a limited historian as he had no recollection of what he experienced when having a psychotic break. The psychologist remarked that the onset of his psychiatric condition appeared to have been in the past ten years and is unrelated to military service. She continued that the Veteran did not identify his tinnitus or PFB as issues that caused or aggravated his psychiatric condition. The Veteran identified heart and knee problems as depressing complaints. The Board finds the psychologist’s opinion to be competent, credible and highly probative. She reviewed the pertinent record, examined the Veteran, accounted for his lay statements then provided an opinion based on medical principles and the evidence. The Board acknowledges the Veteran’s contentions, but the Veteran does not have the requisite expertise or medical training to link his psychiatric condition to his service-connected tinnitus/PFB. See 38 C.F.R. § 3.159 (a)(2). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) Here, the Veteran contends that he is precluded from obtaining or maintaining substantially gainful employment due to his service-connected disabilities. Based on the evidence, the Board disagrees. A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16 (a) (2019). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16 (a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran’s ability or inability to engage in substantial gainful activity, must be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). 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, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful” employment is employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16 (a); see also Moore, 1 Vet. App. at 358 (“The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment.”). In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2019); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his or her disability makes it difficult for her to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. at 363; 38 C.F.R. § 4.16 (a). Thus, the central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this instance, the Veteran is service-connected for tinnitus, rated at 10 percent disabling, PFB rated at 30 percent disabling, left foot plantar fasciitis at 10 percent disabling. Thus, the combined rating of his service-connected disabilities is 40 percent. Therefore, the Veteran does not meet the schedular rating for TDIU under 38 C.F.R. § 4.16 (a). As such, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16 (b). The Board considered extraschedular consideration for TDIU and found it is not warranted. The Veteran’s tinnitus, PFB, and left foot condition are fully contemplated by the rating criteria and are neither unusual nor exceptional. In the July 2017 VA examination, the Veteran reported that his razor bumps were painful and drained when flared. The condition affected forty percent or more of his face and neck. The examiner remarked that the Veteran needed to maintain a beard to keep his condition under control. Additionally, in the July 2017 VA examination, the Veteran reported occasional ringing tinnitus. However, there was no evidence that the Veteran’s conditions would preclude him from obtaining or maintaining substantially gainful employment. The Veteran testified that he is unemployed because employers are afraid to hire him due to his morbid obesity. The Veteran added that his psychiatric condition would preclude gainful employment. The Board notes that the Veteran was employed as a forklift operator but had to stop due to an attack of his gout. Importantly, the Veteran’s contentions as to why he is unemployed relate to conditions that are not service-connected. As discussed above, neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the evidence, the Veteran’s service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. Although the Board acknowledges the Veteran’s service-connected conditions, the evidence does not support that his unemployability stems from his service-connected conditions. Therefore, referral for extraschedular condition of TDIU is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 54. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.