Citation Nr: 21025053 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-10 825 DATE: April 27, 2021 ORDER Entitlement to service connection for bilateral shoulder dislocation is denied. Entitlement to service connection for hallux valgus, right foot, is denied. Entitlement to service connection for hypertension, to include as secondary to PTSD, is denied. Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include as secondary to PTSD, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s bilateral shoulder disability is not related to active duty service. 2. The Veteran has not had a diagnosis of hallux valgus of the right foot, at any time during the period on appeal. 3. The Veteran’s hypertension did not manifest during service and is not caused or aggravated by service-connected PTSD. 4. The Veteran has not had a diagnosis of a TBI at any time during the period on appeal. 5. The Veteran’s service-connected disabilities do not prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral shoulder dislocation have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hallux valgus, right root have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for hypertension, to include as secondary to PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for traumatic brain injury (TBI), to include as secondary to PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from February 1992 to December 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in February 2013, March 2013, and September 2014 by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was previously remanded by the Board in December 2019. The case is now ready for adjudication. 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). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 1. Entitlement to service connection for bilateral shoulder dislocation. The Veteran is claiming entitlement to service connection for a bilateral shoulder disability. Specifically, he asserts that his shoulder disabilities are a result of his military service. Based on the evidence of record, the Board finds that service connection is not warranted for the Veteran’s bilateral shoulder disability. The Veteran’s service treatment records indicate that he sustained injuries to his right shoulder during service. Specifically, the Veteran complained of right shoulder pain in May 1992 after playing basketball. However, he denied severe pain and further complaints. During the Veteran’s September 1998 separation examination, he indicated that he experienced shoulder pain while playing softball, however he did not seek medical help. Additionally, the Veteran indicated that his shoulder dislocates sometimes. With respect to his left shoulder, service treatment records were silent for complaints of, symptoms of, or a diagnosis of a left shoulder condition. Next, while the post-service medical evidence notes the Veteran reported history of bilateral shoulder pain since service, the medical records do not show a diagnosis of a right shoulder condition until December 2010 when he was diagnosed with right shoulder strain, approximately 2 years after active service. Further, a left shoulder condition was not diagnosed until a February 2020 VA examination, 22 years after active service. Therefore, continuity of symptoms is not shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3) for arthritis. As part of his claim, the Board recognizes the statements from the Veteran regarding his history of bilateral shoulder symptoms since service. In this regard, while the Veteran is not competent to make a diagnosis related to a shoulder disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for his left shoulder disorder weighs against the Veteran’s claims. Specifically, the Veteran’s left shoulder complaints are inconsistent with his service treatment records and his treatment records prior to his left shoulder impingement diagnosis in February 2020. Further, the Veteran’s diagnosed right shoulder strain from 2010, was noted as resolved during a June 2012 VA examination and he was not diagnosed with right shoulder impingent until his February 2020 VA examination. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed bilateral shoulder disorder to active service, despite his contentions to the contrary. In this case, the June 2012 VA examiner found no diagnosis of a right shoulder condition because it was noted as resolved. The examiner opined that the Veteran’s shoulder condition was “less likely than not” related to his military service. In support of this opinion, the examiner noted no abnormalities found on examination, he exhibited full range of motion on both left and right shoulder, and X-ray results of the Veteran’s right shoulder conducted on June 27, 2012 revealed unremarkable right shoulder. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). During a February 2020 VA examination, the examiner diagnosed the Veteran with bilateral shoulder impingement. The examiner opined that the Veteran’s left shoulder was less likely than not a result of his military service due to absence of documented evidence of specific event/trauma/injury, onset of symptoms evaluation, diagnosis, or treatment related to left shoulder in 1996/1998. The examiner opined that the Veteran’s right shoulder was less likely than not related to his military service. In support of this opinion, the examiner stated that medical records reveal right shoulder injuries prior to 1996 and 1998 with findings in 1992 and 1993, therefore his right shoulder condition is less like due to service in SW Asia in 1996/1998. The Board notes the Veteran’s primary care physician’s opinion dated March 2020 which states that it is at least as likely as not that Veteran’s right shoulder strain injuries occur from his documented military service shoulder injuries. However, the Board notes that the primary care physician did not discuss the evidence showing that the Veteran’s right shoulder strain was noted as resolved in 2012. Further, the physician based his opinion on the basis that the Veteran’s right shoulder injury that occurred while in service could develop posttraumatic arthritis and adhesive capsulitis and not on his current right shoulder diagnosis. Therefore, the Board gives more probative value to the June 2012 and February 2020 VA examiners who examined the Veteran and provided rationales for their opinions. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his shoulder disorder to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding an etiology of his bilateral shoulder disorder. See Jandreau, 492 F.3d at 1377, n.4. Because this disability is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's disabilities are found to lack competency As a result, the Board concludes that the preponderance of the evidence is against the claim for service connection for a bilateral shoulder disorder, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for hallux valgus, right foot. The Veteran is claiming entitlement to service connection for hallux valgus of his right foot. The Board finds that the preponderance of the evidence does not support granting the Veteran’s claim of entitlement to service connection for hallux valgus, right foot. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of hallux valgus, right foot, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain, 21 Vet. App. at 321. Upon review of the evidence, the Board finds no treatment records indicate that the Veteran has ever been diagnosed with hallux valgus of the right foot. Specifically, the Veteran’s September 1998 separation examination shows that the Veteran indicated no for foot trouble. The Veteran underwent a VA examination in June 2012 for his feet. The examiner determined that the Veteran did not have a diagnosis of hallux valgus. Therefore, the examiner opined that it was less likely than not that the Veteran’s claimed hallux valgus of the right foot was related to his military service as the Veteran does not have the condition on either of the feet. While the Veteran believes he has a current diagnosis hallux valgus, right foot, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, entitlement to service connection for hallux valgus, right foot is not warranted. 3. Entitlement to service connection for hypertension, to include as secondary to PTSD. The Veteran is claiming entitlement to service connection for hypertension. Specifically, he asserts that his hypertension is a result of his service-connected posttraumatic stress disorder (PTSD). In this case, the Board finds that service connection for hypertension as secondary to PTSD is not warranted as the evidence does not show that the Veteran’s hypertension is related to or had its onset during service or within a year after separation, nor is it related to his service connected PTSD. Specifically, the Veteran's service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis related to hypertension. In fact, the Veteran’s September 1998 separation examination shows that he indicated no for high or low blood pressure. Furthermore, the Veteran did not report or receive treatment for hypertension within the presumptive one-year period after separation. In fact, the first medical record indicating a diagnosis of hypertension was in August 2010, 2 years following discharge from service. As such, continuity of symptoms is not shown based on the clinical evidence for purposes of the chronic disease presumption under 38 C.F.R. § 3.307 (a)(3) for hypertension. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, despite his contentions to the contrary, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty, and specifically as secondary to or aggravated by his service-connected PTSD. In August 2015, a VA examiner opined that the Veteran’s hypertension was “less likely than not” due to his service-connected PTSD. In support of this opinion, the examiner stated that by definition hypertension is not secondary to or caused by any other disease, including PTSD, as it is a primary disorder in and of itself. Further, the examiner stated that PTSD can cause adrenalin release that will elevate blood pressure. However, this is not an aggravation of the condition it is a physiological reaction. The Board finds that this examination was adequate for evaluation purposes. The examiner reviewed the claims file, and there is no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any material fact. Further, while the Board acknowledges the Veteran’s March 2012 private physician’s opinion that the Veteran’s hypertension is secondary to and aggravated by his service-connected PTSD, the private physician did not provide any explanation or rationale for his conclusion. Therefore, the Board finds that the Veteran has not submitted any clinical evidence to rebut the VA medical examiner's opinion. In considering the claims on appeal, the Board has also considered the statements made by the Veteran relating his hypertension to his active service. The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however the Veteran is not competent to provide testimony regarding the etiology of cardiovascular disorders. See Jandreau, 492 F.3d at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, any implication that the Veteran's hypertension is due to his service-connected PTSD is found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. 4. Entitlement to service connection for traumatic brain injury (TBI), to include as secondary to PTSD. The Veteran is claiming entitlement to service connection for a traumatic brain injury. He asserts that his TBI was incurred in or is related to his active duty service. Specifically, he stated that he fell and hit his head on the side mass of his ship in 1996 and was involved in a car accident 1997 where he became unconscious for 45 minutes. Despite the Veteran's contention that these in-service events establishes that he should be granted service connection for a TBI, the Board concludes that service connection for a TBI is not warranted because the Veteran does not have a diagnosis of a TBI and has not had such a diagnosis at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303 (a), (d). It is well-established that service connection may only be granted for a current disability, and therefore, when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (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). Here, after a thorough review of the evidence, the Board finds no treatment records indicate that the Veteran has ever been diagnosed with a TBI. Specifically, the Veteran’s September 1998 separation examination shows that the Veteran indicated no for head injury. Additionally, the Veteran underwent a VA examination in February 2021 for TBI. The Veteran reported that he was involved in a single car accident in 1997, was observed in the ER and was released within 24 hours. He reported that he returned to the ship and a few days later he noticed headaches. The examiner found no diagnosis of TBI. The examiner opined for the claimed condition of residuals of TBI with headaches and memory loss, there is no diagnosis because symptoms are most likely due to PTSD. Additionally, the examiner opined that the Veteran’s claimed TBI was less likely than not related to his military service as his service treatment records were silent for head injury and the Veteran denied head injury or residuals. Further, the examiner stated that PTSD does not cause TBI, TBI is caused by traumatic injuries to the brain, as noted above, the Veteran denied having a head injury, memory loss, or headaches throughout enlistment and in Sep 1997, 6 months after his MVA. The examiner further noted that headaches were not documented until 2013 and at that time the Veteran noted that his headaches had been present for a couple of years. In conclusion, the examiner stated that no history of trauma was reported, which is simply not consistent with a mild TBI from the 1990s as mild TBIs resolve in hours, days, or weeks and symptoms do no start later or worsen over time. The Board acknowledges the Veteran's assertion that he has a TBI. Nevertheless, he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). By virtue of the foregoing, the preponderance of the evidence is against a finding that the Veteran has had a TBI at any point during the period on appeal, and, therefore, service connection for a TBI is not warranted. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 5. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran is seeking entitlement to service connection for a total disability rating based on individual unemployability. Specifically, he asserts that his service-connected disabilities prevent him from obtaining substantial gainful employment. A total disability rating for compensation purposes may be assigned based on individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Total disability is considered to exist when there is any impairment which is enough 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). In this case, the Veteran is service-connected for PTSD at 70 percent disabling from February 22, 2015, Seborrheic dermatitis at 60 percent disabling from March 23, 2011, sleep apnea at 50 percent disabling from March 23, 2011, and loss of vision from 30 percent disabling from March 23, 2011. The Veteran’s combined rating is 90 percent disabling from March 23, 2011 and 100 percent disabling from February 22, 2015. Thus, the schedular requirements under 38 C.F.R. § 4.16(a) have been met. However, the Board concludes that TDIU is nevertheless not warranted, based on the evidence of record, because the Veteran is able to secure or follow a substantially gainful occupation, despite his service-connected disabilities. See 38 C.F.R. § 4.16(b). After a review of the competent evidence of record, the Board finds that the Veteran is able to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). The Board notes the most current evidence of record indicates that the Veteran is employed as a senior epic interface engine analyst at Riverside Regional Hospital. Further, the Veteran reported that he recently completed his bachelor’s degree in October 2020. With respect to the medical evidence, the Veteran’s VA medical treatment records report that the Veteran is able to obtain and retain substantial gainful employment. Specifically, the Veteran’s August 2015 VA examination reveals that his skin disability does not affect his ability to work. Further, the Veteran’s February 2020 VA examinations for his service-connected obstructive sleep apnea and eye condition show that these conditions do not affect his ability to work. In regard to the Veteran’s service-connected PTSD, a February 2019 VA examination reveals that the Veteran exhibits occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Additionally, during this examination the Veteran reported that he had been employed in 4 different computer analyst positions and terminated from all three as an outcome of manifesting anger when interacting with others and experienced problems with concentration However, during his February 2019 VA examination, the Veteran reported that he was currently employed in a position as a computer analyst with Tech systems and has been employed for 2 months. As noted above, the Veteran has recently completed his bachelor’s degree and is currently employed as of January 2021. Further, the Veteran reports that things are going great at work and he has no current needs at this time. Therefore, the Board finds that his service-connected disabilities do not prevent him from obtaining and maintaining gainful employment. The Board acknowledges a letter from the Veteran’s primary care physician in March 2012 stating that the Veteran is totally and permanently disabled due to his PTSD and service-connected conditions. However, the Board assigns little probative weight to that letter because the physician failed to discuss or address whether the Veteran was only prohibited from performing his current job duties, or whether he was prohibited from obtaining and maintaining any and all employment. In any event, the fact that a physician finds that the Veteran is unemployable is not dispositive, as unemployability is a question for the Board, as finder-of-fact, to determine. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board has also considered the statements from the Veteran, which indicate that the Veteran’s service-connected disabilities prevent him from working. Nevertheless, the Board assigns more probative weight to the fact that the Veteran is currently substantially gainfully employed, as well as the medical evidence which indicates that the Veteran’s service-connected disabilities do not prevent him from obtaining and retaining substantial gainful employment. Therefore, the weight of the evidence is against the Veteran’s TDIU claim. In sum, the Board determines that the Veteran was able to engage and maintain substantially gainful employment for the period on appeal. As such, the Veteran’s TDIU claim is denied. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Michael L. Marcum Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vample, Erica 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.