Citation Nr: 22011302
Decision Date: 02/28/22	Archive Date: 02/28/22

DOCKET NO. 17-66 155
DATE: February 28, 2022 

ORDER

Entitlement to service connection for low back disorder is denied.

Entitlement to service connection for associated lumbar radiculopathy, sciatic nerve, right lower extremity (RLE), is denied.

Entitlement to service connection for associated lumbar radiculopathy, sciatic nerve, (LLE), is denied.

Entitlement to service connection for associated lumbar radiculopathy, radicular group, LLE, is denied.

Entitlement to service connection for associated lumbar radiculopathy, radicular group, RLE, is denied.

Entitlement to service connection for right elbow disorder is denied.

Entitlement to service connection for lymphoma is denied.

Entitlement to service connection for eye disorder, to include corneal scars, is denied.

Entitlement to service connection for bilateral testicular disorder is denied.

Entitlement to service connection for residuals of laceration, right 2nd and 3rd fingers, is denied.

Entitlement to service connection for right ear hearing loss is denied.

Entitlement to service connection for left ankle disorder is denied.

Entitlement to service connection for right ankle disorder is denied.

Entitlement to service connection for hypertension (HTN) is denied.

Entitlement to service connection for foot disorder is denied.

Entitlement to an initial compensable rating for left ear hearing loss is denied.

Entitlement to an initial compensable rating for heart disorder is denied.

REMANDED

Entitlement to service connection for right knee disorder is remanded.

Entitlement to service connection for left knee disorder is remanded.

Entitlement to service connection for respiratory disorder is remanded.

Entitlement to service connection for a skin disorder of the head, face, and scalp is remanded.

Entitlement to an initial compensable rating for skin disorder, to include dermatitis, is remanded.

FINDINGS OF FACT

1. The evidence of record is persuasively against a finding that a low back disorder had onset in active service or is otherwise causally connected to active service.

2. The evidence of record is persuasively against a finding that associated lumbar radiculopathy of the Les had its onset in active service or is otherwise causally connected to active service.

3. The evidence of record is persuasively against a finding that a right elbow disorder had onset in active service or is otherwise causally connected to active service.

4. The evidence of record is persuasively against a finding of a current diagnosis of lymphoma or of any ongoing lymphoma pathology.

5. The evidence of record is persuasively against a finding of a current diagnosis of a disabling eye disorder due to corneal scars.

6. The evidence of record is persuasively against a finding of a currently diagnosed testicular disorder or of any ongoing pathology.

7. The evidence of record is persuasively against a finding that a laceration of the right 2nd and 3rd fingers occurred during active service.

8. The evidence of record is persuasively against a finding of a currently diagnosed right ear hearing loss that meets the VA definition of disability.

9. The evidence of record is persuasively against a finding that a left ankle disorder had onset in active service or is otherwise causally connected to active service.

10. The evidence of record is persuasively against a finding that a right ankle disorder had onset in active service or is otherwise causally connected to active service.

11. The evidence of record is persuasively against finding a currently diagnosed HTN disorder.

12. The evidence of record is persuasively against a finding that a foot disorder did had onset in active service or is otherwise causally connected to active service.

13. The evidence of record persuasively favors a finding that the left ear hearing loss has manifested at Level I throughout the initial rating period on appeal.

14. The evidence of record is persuasively against a finding that the Veteran's heart disorder has manifested with a workload of at least 7 METS but not greater than 10 METS or with the requirement of continuous medication throughout the initial rating period on appeal.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

2. The criteria for entitlement to service connection for associated lumbar radiculopathy, LEs, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 4.124a.

3. The criteria for entitlement to service connection for a right elbow disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

4. The criteria for entitlement to service connection for lymphoma have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

5. The criteria for entitlement to service connection for an eye disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

6. The criteria for entitlement to service connection for a testicular disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

7. The criteria for entitlement to service connection for laceration residuals, right 2nd and 3rd fingers have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

8. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a), 3.385.

9. The criteria for entitlement to service connection for a bilateral ankle disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

10. The criteria for entitlement to service connection for HTN have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a).

11. The criteria for entitlement to service connection for a foot disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

12. The criteria for entitlement to an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.31, 4.85, 4.86, Diagnostic Code (DC) 6100.

13. The criteria for entitlement to an initial compensable rating for a heart disorder, including ventricular arrhythmia, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.31, 4.104, DC 7011.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran perfected an appeal from a June 2014 rating decision. See 06/06/2014 Rating Decision; 11/01/2017 SOC; 12/06/2017 VA Form 9. In February 2021 the Veteran testified before the undersigned Veterans Law Judge at a Board virtual hearing. A transcript is of record. See 02/10/2021 Hearing Transcript. The undersigned held the record of the hearing open pending receipt of a copy of the claims file by the Veteran's representative. A copy was provided in May 2021.

The June 2021 rating decision also included a denial of service connection for the acquired mental disorders of PTSD and anxiety. Following the Veteran's appeal, in a November 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for an acquired mental disorder other than PTSD. See 11/01/2017 Rating Decision. There is no evidence that the Veteran appealed either the assigned initial rating or effective date. Hence, as the undersigned informed the Veteran's representative at the hearing, the acquired mental disorder issue is not before the Board and will not be addressed in this decision. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); see also Hearing Transcript, P. 2.

Service Connection

Applicable Legal Requirements

Generally, to establish a right to compensation for a present disability, a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

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).

In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Lanyo v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the 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. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102.

1. Entitlement to service connection for low back disorder.

Service treatment records (STRs) note the Veteran's treatment for low back pain (LBP) in 2006 following a motor vehicle accident (MVA). See 12/27/2006 STR-Med, 1st Entry, P. 13. The Veteran asserts that his current low back symptoms, including the tingling in his LEs, are due to that MVA for which he has received post-service treatment. See Hearing Transcript, P. 17-18.

The May 2014 examination report (05/19/2014 C&P Exam, 1st Entry, P. 1-9) reflects that the examiner conducted a review of the claims file and noted the Veteran's lay reported history as part of the examination. The Veteran reported in-service LBP in 2003, and that he had received chiropractic treatment after service. He assessed his pain as of 6/10 in intensity. The examiner did not diagnose a low back disorder, as the objective findings on clinical orthopedic and neurological examination revealed a normal back examination. Id. P. 2. Based on the examination findings, examiner noted that there was no current disorder for which to consider a nexus with active service. Id. P. 19.

The Board finds that the evidence of record persuasively favors a finding against the claim. As noted earlier, the STRs note the in-service MVA that the Veteran asserts supports his claim, and he did note the area on his medical history for his examination at separation. See 12/27/2006 STR-Med, 1st Entry, P. 55. The Board also notes, however, that a February 2005 Report of Medical Examination for Periodic Flight Physical reflects a normal spine. Id. P. 57. Further, the entry related to the 2006 MVA notes only that the cervical spine x-ray revealed abnormalities, not the lumbar spine. Id. P. 14. The Board notes the 2013 finding of positive straight leg raising during physical therapy for low back pain, but per the May 2014 VA examination report, x-rays of the lumbar spine did not reveal arthritis, and that a May 2014 MRI examination of the lumbar spine was normal, as was a December 2010 MRI examination. See 05/19/2014 C&P Exam, 1st Entry, P. 9; 05/20/2014 CAPRI, P. 58. The Veteran's outpatient records also note a post-service MVA in 2008. See 05/20/2014 CAPRI, P. 81.

The Board acknowledges that the Veteran is competent to testify to the history of his condition and the symptoms that he has experienced and experiences. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); 38 C.F.R. § 3.159(a)(2). The Board notes, however, that the Veteran's testimony on current symptoms was not that specific. In that regard, as concerns a nexus with any current symptoms, the Board finds that rendering such an opinion requires medical training, and there is no evidence that the Veteran has medical training. Hence, any personal opinion of his on a causal nexus would not be probative. See 38 C.F.R. § 3.159(a)(1). Moreover, as set forth above, a medical examination conducted some 8 years after his separation from active service did not reveal a then current low back disorder.

Based on all of the above, the Board finds that the evidence of record persuasively favors a finding against the claim. Hence, it is denied. 38 C.F.R. § 3.303.  Since the evidence of record is persuasively against the claim, there is no reasonable doubt to resolve. See Lynch, 999 F.3d 1391; see also 38 C.F.R. § 3.102.

2. Entitlement to service connection for associated lumbar radiculopathy of the LEs.

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, once service connection is in effect, a claimant is entitled to have all symptomatology related to the disability evaluated. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The radiculopathy claims are necessarily inextricably connected to the low back claim. Since the Board has determined that the evidence of record is persuasively against the low back claim, these claims also must be denied.  There is no other evidence of record directly linking radiculopathy to active service.  

3. Entitlement to service connection for right elbow disorder.

Again, the Veteran's testimony on this claimed disorder was not very specific. He testified that he injured his right elbow in service while practicing martial arts. He sought treatment and that they found a chip, which the Board interprets to mean that there was a chip fracture at the elbow. As concerns his current symptoms, he testified that he was not certain if they were of an orthopedic or neurologic nature, as he is not a physician. See Hearing Transcript, P. 12.

The Board notes that the AOJ did not arrange an examination specifically connected to this claim. Nonetheless, the Board finds no failure to assist the Veteran with his claim by the AOJ. See 38 C.F.R. § 3.159(c)(4). First, there are no entries in the STRs related to treatment for an elbow entry. In preparation for his separation, the Veteran provided conflicting entries. On an October 2006 Report of Medical Assessment, he noted that he had sought medical attention for his elbow as well as his neck, back, and skin. He made a similar notation on the October 2006 Report of Medical History. The examiner, however, did not specifically note the right elbow and did not make a referral for further examination. See 12/27/2006 STR-Med, 1st Entry, P. 52, 54, 55.

VA will provide a medical examination or obtain a medical opinion where there is insufficient competent medical evidence to make a decision on the claim but: (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; and, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). All of the above conditions must be met to trigger an examination, but the threshold is low. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

While the Veteran's lay testimony can be sufficient to satisfy Elements 2 and 3, it is not necessarily sufficient to satisfy Element 1. See Waters v. Shinseki, 601 F.3d 1274 (Fed Cir. 2010). As noted earlier, there is no record in the STRs of treatment for a right elbow injury or of a diagnosed right elbow disorder. The Board also notes that the Veteran's VA outpatient records do not note a currently diagnosed right elbow disorder. Hence, Board finds that the low threshold for a VA examination has not been triggered. Further, also as noted, the Veteran conceded in his hearing testimony that he did not know if the symptoms he testified to are of an orthopedic or neurological nature. On a claim not before the Board, the AOJ granted service connection for a cervical spine disorder and associated cervical radiculopathy of the RUE and assigned a separate rating for each. See 11/01/2017 Rating Decision. Thus, while the Board finds an insufficient basis on which to allow service connection for a right elbow disorder as part of residuals of a chip fracture, the Veteran is being compensated for pathology of his RUE.

Based on all of the above, the Board finds that the evidence of record persuasively favors a finding against the claim. Hence, it is denied. 38 C.F.R. § 3.303.  Since the evidence of record is persuasively against the claim, there is no reasonable doubt to resolve. See Lynch, 999 F.3d 1391; see also 38 C.F.R. § 3.102.

4. Entitlement to service connection for lymphoma.

STRs note the Veteran's complaints of and treatment for an enlarged lymph node at the right forearm. In June 2000 it was assessed as a reaction to a vaccination. There was a recurrence in June 2005 for which an ultrasound revealed no involvement of the underlying musculature. See 12/27/2006 STR-Med, 1st Entry, P. 3, 29.

The VA examination report (05/24/2014 C&P Exam, 2nd Entry) reflects that the examiner noted the Veteran's history of having served in the Persian Gulf in 2003, where he was noted to have swellings of the lymph nodes in the neck at that time, and that he also developed lumps under the armpits and on the forearms. The examiner noted further that at one point there was concern that they may have been due to lupus but also that they were the result of immunizations he received. The swelling resolved but there have been subsequent recurrences. The Veteran reported that some of his past bloodwork revealed abnormalities, but he did not recall the details. Id. P. 2. The examiner noted that the examination did not reveal any current pathology due to lymphoma. The examiner noted further that the Veteran needed current routine blood testing, as his 2011 results showed mild leukopenia (low white blood cell count). Subsequent blood tests revealed no abnormalities. See 11/01/2017 C&P Exam; 11/01/2017 CAPRI, P. 46.

The Veteran's testimony was essentially to his past treatment. He testified that there was a recurrence in 2010, and that he has mentioned it during his routine VA visits. See Hearing Transcript, P. 14. As noted, however, the May 2014 VA examination did not reveal current pathology, and his 2017 bloodwork was normal.

The first requirement for service connection is a currently diagnosed disease or injury. 38 C.F.R. § 3.303. This requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim, even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007).

VA received the Veteran's claim in 2013. See 07/17/2013 VA 21-526EZ. As discussed above, the evidence of record is persuasively against a finding that the Veteran manifested current lymphoma pathology in July 2013, or that he has had any current pathology since the receipt of his claim. Hence, the Board is constrained to deny the claim. 38 C.F.R. § 3.303. The Veteran may file a supplemental claim for this condition at any time in the future that he manifests current symptomatology.

5. Entitlement to service connection for an eye disorder.

The Veteran testified that he had eye irritation while in the Persian Gulf, and that he had been issued eye drops for use to keep his eyes lubricated. He also testified that he has had metal in his eyes, and that he was recently issued eyeglasses. See Hearing Transcript, P. 14, 15.

The earlier discussion on when a VA examination is triggered is incorporated here by reference. There are no entries in the STRs related to complaints of or treatment for eye symptoms or an eye disorder. His February 2005 Report of Medical Examination for Periodic Flight Physical reflects that the Veteran's eyes were assessed as normal, and his visual acuity was 20/20 bilaterally. On his October 2006 Report of Medical History for his examination for separation, the Veteran did not report, nor did the examiner noted any history of an eye disorder. See 12/27/2006 STR-Med, 1st Entry, P. 78, 80.

VA outpatient records dated in May 2007 reflects the Veteran's presentation for left eye irritation. The primary diagnosis was corneal abrasion of each eye that did not affect vision. See 05/20/2014 CAPRI, P. 310. The entry does not contain much history. It does note a history of having gotten hydraulic fluid in his eyes during active service, and that he rinsed his eyes with a wash each time. The examination was normal. In January 2008 the Veteran again complained of left eye irritation time one month off and on. The entry notes that there was no redness, discharge, or decrease in acuity. Id. P. 266. No eye disorder was diagnosed, to include one for which VA deems a disability. See 38 C.F.R. § 4.79. A VA outpatient entry dated in October 2017 notes that the Veteran had presented at the ER the prior night with complaints of a foreign body in his right eye. He was prescribed an antibiotic and another medication, which he had not taken. The diagnosis was a possible corneal scratch. The Veteran reported that he worked in cabinetry, but he did not remember a foreign body in his eye. A full eye examination did not reveal a foreign body or a disorder. The examiner noted that any foreign body may have been flushed out, and the Veteran was instructed not to take the prescribed medication. See 11/01/2017 CAPRI, P. 1-5.

VA rates visual impairment on the basis of visual acuity, excluding developmental errors of refraction. 38 C.F.R. § 4.75. The Board notes the Veteran's testimony that he now has glasses. The Board notes further that refractive error may not be the subject of service connection. 38 C.F.R. § 3.303(c). Moreover, there is no showing in this case that it was subject to superimposed additional disability during service.  VAOPGPREC 82-90.  Hence, the Board is constrained to deny the claim.

6. Entitlement to service connection for laceration residuals, right 2nd and 3rd fingers.

The earlier discussion on when a VA examination is triggered is incorporated here by reference. In his NOD, the Veteran noted that he disagreed with the denial of a claim for an injury on his left hand. See 06/17/2017 NOD. On his claim, however, he clearly claimed entitlement to service connection for an injury to fingers on his right hand, and that is the claim that the AOJ adjudicated.

At the hearing, the Veteran testified that he injured the finger on his right hand while moving a piece of equipment around an aircraft when his finger got lodged in the door. When treated he was told that he would have to watch out for arthritis since the laceration right on the joint. Hearing Transcript, P. 17.

The injury the Veteran described at the hearing is as noted in his STRs, but it was to his left middle finger in April 2003, as a 1 cm bump was noted at the base of the joint on a revisit. See 12/27/2006 STR-Med, 2nd Entry, P. 48. There is no record of an injury to the right hand in the STRs, nor did the Veteran report any history of an injury to fingers on his right hand when he separated from active service. See 12/27/2006 STR-Med, 1st Entry, P. 78, 80. His VA outpatient records do note a post-service injury to his right hand in April 2009 when he punched his hand through an automobile window. See 05/20/2014 CAPRI, P. 172. Having occurred after his active service, there is no factual basis for a causal connection. Hence, the Board finds that the AOJ properly denied the claim. 38 C.F.R. § 3.303.

7. Entitlement to service connection for a testicular disorder; bilateral ankle disorder, a bilateral foot disorder.

The earlier discussion on when a VA examination is triggered is incorporated here by reference. At the hearing, the Veteran testified that he first experienced testicular pain during his active service around 2004. After his separation he was told that a varicocele or something was found. He has testicular pain not often but at least once a year. Hearing Transcript, P. 15, 16. Concerning his ankles and feet, the Veteran's testimony essentially related back to his knees, and as it related to symptoms of his hands and feet, he described numbness and tingling as opposed to an orthopedic injury or disorder. He did testify that sometimes his ankle goes out. Id. P. 11.

At the time of his examination for separation from active service, the Veteran did not list or report any history of a genitourinary (GU), ankle, or foot disorder. The same is true for his February 2005 Report of Medical History for the periodic flight physical, and the February 2005 examination report reflects that his GU system and his lower extremities were assessed as normal. 12/27/2006 STR-Med, 1st Entry, P. 78, 80. A May 2007 VA assessment notes that the Veteran's GU system was normal, and his testes fully descended. See 05/20/2014 CAPRI, P. 303. As concerns the complaints of numbness and tingling of the LEs, the May 2014 examiner determined that the examination did not show evidence of a consistent pattern of leg numbness. See 05/19/2014 C&P Exam, 3rd Entry. Motor strength, reflexes, and sensation for the LEs was normal. See 05/19/2014 C&P Exam, 1st Entry, P. 9-16.

The Board notes the Veteran's testimony of having experienced testicular pain, but the evidence of record is persuasively against a finding of a currently diagnosed underlying disorder associated with the pain. Further, there is no evidence of diagnosed chronic testicular pain at the time of separation from active service, nor is there evidence that such pain has impaired the Veteran's earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Hence, the Board is constrained to deny the claims of entitlement to service connection for a testicular, bilateral ankle, and bilateral foot disorder. 38 C.F.R. § 3.303. 

8. Entitlement to service connection for HTN.

Applicable Legal Requirements

In addition to the general requirements for service connection set forth earlier, HTN is among the chronic diseases that are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. The section provides further provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, DC 7101 Note (1).

Discussion

A November 2003 entry in the STRs note that the Veteran's blood pressure was 154/67. See 12/27/2006 STR-Med, 2nd Entry, P. 90. One week later it was noted as 152/94, and in September 2004, 151/66. Id. P. 92, 94. In May 2005 a 3-Day HTN was directed, but the entry only notes readings taken on 2 days. Id. P. 96. On Day 1 the readings standing were 132/68 and 144/78. On Day 2 they were 134/68 and 128/70. Id. P. 96. In July 2006 a reading of 150/87 was recorded. The February 2005 Report of Medical Examination for Periodic Flying reflects that the Veteran's blood pressure was 130/84. The Veteran's October 2006 Report of Medical History reflects that the examiner noted that the Veteran was screened for HTN and a 3-Day was within normal limits. See 12/27/2006 STR-Med, 1st Entry, P. 78. On a separate document related to the Veteran's medical history pre-hypertension is noted. See id. P. 54.

The VA examination report (06/04/2014 C&P Exam, 1st Entry, P. 14-18) reflects that the Veteran's blood pressure reading at the examination was 122/80. The examiner also noted a May 2010 reading in the Veteran's records of 110/70, and a May 2014 reading of 116/88, for an average of 116/79. Id. P. 16. The examiner also noted that the Veteran's STRs showed that he had elevated blood pressure readings at times, that pre-HTN was noted but he was never treated for it. Based on the review of the Veteran's records and the examination of the Veteran, the examiner opined that the Veteran did not have a history of diastolic blood pressure of predominantly 90mm. or greater, or the requirement for continuous medication for control. With respect to the elevated readings during the Veteran's active service, the examiner opined that they may have been due to white coat syndrome, as his recent readings were normal. The examiner also noted the fact that the Veteran has diagnoses of anxiety and PTSD in his records. In any event, the examiner noted that the Veteran did not manifest with a current diagnosed HTN disorder. The examiner also opined that the Veteran's blood pressure status did not impair his ability to work.

The Veteran's hearing testimony was not at odds with the findings at his VA examination, as he testified that his blood pressure has been essentially normal. He explained that when he was having a significant anxiety episode his blood pressure would be astronomical. Hearing Transcript, P. 9. The Board notes that his outpatient records on file do not support his description. His VA outpatient records note elevated readings in October 2017 of 155/95 and May 2016 of 157/77. The entry does not note a diagnosis of HTN. In fact, the area that reflects any history of HTN is not checked. See 11/01/2017 CAPRI, P. 7, 10, 31.

Regarding the date of the records versus the Veteran's 2021 hearing testimony, as noted earlier, the undersigned held the record open for receipt of additional evidence and none was received. Further, the representative received a copy of the claims file in May 2021.

Based on the above, the Board finds that the evidence does not trigger a remand to address the issue of HTN due to the service-connected acquired mental disorder, as there is no currently diagnosed HTN disorder, which would be the first requirement for secondary service connection. See 38 C.F.R. § 3.310. Hence, the Board finds that the evidence is persuasively against finding that the Veteran does not have HTN. Thus, the Board is constrained to deny the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a).

9. Entitlement to service connection for right ear hearing loss.

Additional Legal Requirements

In addition to the general requirements for service connection set forth earlier, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 

VA regulations do not preclude service connection for a hearing loss that first met VA's definition of disability after service, provided the evidence of record shows the required nexus with active service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also 38 C.F.R. § 3.303(d).

Certain organic diseases of the nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA deems sensorineural hearing loss (SNHL) as among the organic diseases of the nervous system that are covered. See VA Under Secretary for Health Memorandum (October 1995); see also Fountain v. McDonald, 27 Vet. App. 258, 260, 271-72 (2015) (explaining that other organic diseases of the nervous systems, include sensorineural hearing loss).

Discussion

The May 2014 VA examination report (05/24/2014 C&P Exam, 1st Entry) reflects that the Veteran's right ear hearing acuity manifested as follows:

HERTZ	500	1000	2000	3000	4000	SPEECH

RIGHT	10	10	15	15	15	94%

Id. P. 1-2.

The examiner opined that the test results were valid for rating purposes. As is readily apparent, the Veteran's right ear did not meet the VA threshold for a hearing disability. 38 C.F.R. § 3.385. The Veteran's hearing testimony did not really dispute the objective findings at the 2014 examination, nor did he assert that his right ear hearing acuity had decreased since the examination. Hence, the Board finds that the evidence is persuasively against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a), 3.385. Thus, there is no reasonable doubt to resolve. See Lynch, 999 F.3d 1391; 38 C.F.R. § 3.102.

Increased Rating

Increased Rating General Requirements

Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10.

If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflects the elements of disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991).

The Veteran is entitled to increased ratings for any part of the initial rating period on appeal where a disability manifested at a greater rate of disability. See O'Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

10. Entitlement to an initial compensable rating for left ear hearing loss.

Rating Criteria

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz (Hz), divided by four. 38 C.F.R. § 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. 

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). When the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from "I" for essentially normal acuity, through "XI" for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII.

A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI. 38 C.F.R. § 4.85, Table VII, DC 6100.

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran has been assigned a 0 percent (noncompensable) evaluation throughout the rating period on appeal, and the Board finds no basis for an award of a compensable rating for the initial rating period.

Discussion

The May 2014 examination report reflects that the Veteran's left ear manifested as follows:

HERTZ	1000	2000	3000	4000	AVG	SPEECH

LEFT	10	10	10	15	13.75	92%

See 05/24/2014 C&P Exam, 1st Entry.

The examiner opined that the results were valid for rating purposes. As is evident, the Veteran's puretone thresholds were well above those required for hearing loss disability. He was awarded service connection based on his Speech Discrimination Score, which was less than 94 percent. Given that fact, the left ear did not manifest with an exceptional pattern of hearing impairment.

The objective results on the left ear show it to have manifested at Level I.  Since the right ear is not service connected, it is deemed to be Level I also. Those levels intersect at the 0 percent rate in Table VII. Hence, the AOJ appropriately rated the Veteran's left ear hearing loss at 0 percent. Id.

The Board acknowledges the impact of the hearing on loss on the Veteran's ordinary conditions of life. Nonetheless, as noted earlier, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. 345. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). His main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The objective evidence of record persuasively shows that the Veteran's left ear hearing loss has manifested at no worse than Level I throughout the period.

At the hearing, the Veteran did not provide significant testimony regarding the severity of his left ear hearing loss, to include testimony that his left ear hearing loss had increased in severity. Hence, the Board finds no factual basis on which to remand for a current examination.

11. Entitlement to an initial compensable rating for heart disorder. 

The heart rating criteria provide that unless otherwise directed, the general rating formula to evaluate diseases of the heart is to be applied. 38 C.F.R. § 4.104, Diseases of The Heart.

The Veteran's current diagnosis is ventricular arrhythmia. The criteria for that disability provide that for an indefinite period from the date of inpatient hospital admission for initial medical therapy for a sustained ventricular arrhythmia; or, for an indefinite period from the date of inpatient hospital admission for ventricular aneurysmectomy; or, with an automatic implantable cardioverter-defibrillator (AICD) in place, a 100 percent rating is warranted. Id. DC 7011. The Note provides that when inpatient hospitalization for sustained ventricular arrhythmia or ventricular aneurysmectomy is required, a 100-percent evaluation begins on the date of hospital admission with a mandatory VA examination six months following hospital discharge. Evaluate post-surgical residuals under the General Rating Formula. Apply the provisions of § 3.105(e) to any change in evaluation based upon that or any subsequent examination.

The evidence of record, to include the June 2014 examination report, reflects that the Veteran has never been hospitalized for the disability. Service connection was granted solely on the basis of the in-service diagnosis. Hence, the General Formula for rating heart disability must be used, which is based on METS (metabolic equivalents).

One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which breathlessness, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, a medical examiner may estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in those symptoms. General Formula Note (2).

For the General Formula, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. General Formula Note (3).

Under the General Formula, chronic congestive heart failure (CHF), or a workload of 3 METs or less resulting in heart failure symptoms; or, left ventricular (LV) dysfunction with an ejection fraction (EF) less than 30 percent, warrants a 100 percent rating. More than one episode of acute CHF in the past year, or a workload of greater than 3 METs but not greater than 5 METs resulting in heart failure symptoms; or, LV dysfunction with EF of 30 to 50 percent also warrants a 100 percent rating. A workload of greater than 5 METs but not greater than 7 METs resulting in heart failure symptoms; or, LV dysfunction with an EF of 30 to 50 percent warrants a 60 percent rating. A workload of greater than 5 METs but not greater than 7 METs resulting in heart failure symptoms; or, evidence of cardiac hypertrophy or dilatation on ECG, echocardiogram, or x-ray warrants a 30 percent rating. A workload of greater than 7 METs but not greater than 10 METs resulting in heart failure symptoms; or, continuous medication is required warrants a 10 percent rating. 38 C.F.R. § 4.104, Diseases of the Heart.

The VA examination report (06/04/2014 C&P Exam, 1st Entry, P. 4-9) reflects that the examiner conducted a review of the claims file as part of the examination. The examiner noted that the records review revealed the diagnosis of ventricular arrhythmia, and that there was no record of the Veteran having experienced recent symptoms. The examiner noted that the Veteran did not require medication to control his condition, and that the examination was otherwise negative for symptoms such as CHF, etc., and he had not been hospitalized. Physical examination revealed a heartrate of 72; regular rhythm; point of maximum impact of the 5th intercostal space; normal heart sounds, and that the lungs were clear to auscultation. There was no jugular-venous distension; peripheral pulses were normal; there was no edema of the LEs; and the Veteran's blood pressure was 110/70. Id. P. 6-7. The examiner opined that there was no evidence of cardiac hypertrophy. The examiner conducted an interview to determine the Veteran's METs workload, and the Veteran denied having experienced symptoms with any level of physical activity. Id. P. 9. The examiner also opined that the Veteran's heart disorder had no impact on his ability to work.

The objective findings on clinical examination show that the Veteran denied any active symptoms due to his disability, which the AOJ determined was evidence of a workload greater than 10 METS. Hence, a noncompensable rating was assigned. See 38 C.F.R. § 4.31.

The Veteran's hearing testimony contained nothing to indicate that his heart symptoms had worsened. Hearing Transcript, P. 6-7. Hence, the Board finds that the evidence persuasively favors a finding that the heart disorder continues to manifest at the noncompensable rate. 38 C.F.R. §§ 4.1, 4.31, 4.104, DC 7011. The Board finds further that the Veteran's hearing testimony did not trigger a remand for a current examination.

REASONS FOR REMAND

1. Entitlement to service connection for bilateral knee disorder is remanded.

The May 2014 VA examination report reflects that the examiner determined that the examination of each knee was normal. The examiner noted that knee x-rays were interpreted as having shown no abnormality. See 05/19/2014 C&P Exam, 1st Entry, P. 9-16, 16. The Board notes, however, that the examiner did not note of otherwise consider MRI examinations of the knees conducted in 2010 and 2009 that noted some pathology. See 05/20/2014 CAPRI, P. 52-54. Hence, a remand is in order to consider that evidence potentially favorable to the Veteran. Further, the Veteran testified that his knees give out at times.

2. Entitlement to service connection for respiratory disorder is remanded.

The VA examination report reflects that no disorder was diagnosed on examination, but the examiner noted that pulmonary function tests (PFTs) to rule out asthma were pending. See 05/94/2014 C&P Exam, 1st Entry, P. 12-14, 18. The Board finds no documentation in the Veteran's records that indicates the results of PFTs or whether any were scheduled. Hence, a remand is in order.

3. Entitlement to an initial compensable rating for skin disorder, to include dermatitis; and, entitlement to service connection for a skin disorder of the head, face, and scalp are remanded.

The Veteran's skin disability was evaluated under 38 C.F.R. § 4.118, DC 7806. See the June 2014 Rating Decision.

Effective August 13, 2018, during the course of the appeal, the criteria for rating skin/scar disabilities were revised. See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria are more favorable to the veteran will be applied." 83 Fed. Reg. at 32593. In other words, the August 13, 2018 amended skin rating criteria can be applied retroactively, if more favorable to the Veteran. See generally VAOPGCPREC 3-2000, 7-2003. As noted earlier, VA received the Veteran's claim in July 2013. Thus, the appeal was pending prior to the August 13, 2018 revisions. As such, the Veteran's appeal for a higher rating for his dermatitis must be considered under both sets of rating criteria for the skin - the rating criteria both before and after August 13, 2018. See again 83 Fed. Reg. at 32593 (emphasis added).

Diagnostic Code 7806 was revised to state that disabilities evaluated under that code section should be evaluated under a General Rating Formula for the Skin introduced by the amendments.

The Veteran's disability has not been evaluated under the revised criteria. Hence, a current examination should be conducted so that the Veteran may have the benefit, if any, under the current criteria.

The Veteran also claimed entitlement to service connection for a skin disorder of the head, face and neck. In the June 2014 rating decision, the AOJ determined that the Veteran did not manifest with a skin disorder of the head, face, or neck during his active service, and that his currently diagnosed skin disorder did not affect any exposed area such as the head, face, or neck. See 06/06/2014 Rating Decision. At the hearing, however, the Veteran testified that in addition to eruptions on his arms, he also gets redness throughout his face, and that it looks like some type of acne. It occurs 3 to 4 times a year at a minimum. Hearing Testimony, P. 8.

The STRs do not contain any entries that are related to complaints of treatment for skin involvement of the head, face, or scalp. On his Report of Medical Assessment and his medical history, however, the Veteran did note that his skin symptoms included his head. See 12/27/2006 STR-Med, 1st Entry, P. 52.

The June 2014 examination report (06/04/2014 C&P Exam, 1st Entry, P. 9-12) reflects diagnoses of dermatitis and keratinization. The examination revealed the disorders to be asymptomatic that time, and the examiner did not indicate any involvement of the head, face or neck, or any history related to that area. Hence, the Board finds that a current examination should also address whether is current involvement of the head, face or scalp, and whether it is part of the service-connected disability.

The Board reminds the Veteran that he should photograph eruptions of his skin disability in the event that he is asymptomatic when an examination is scheduled.

The matters are REMANDED for the following action:

1. The AOJ shall ensure that all relevant treatment records generated since 2017 are obtained and added to the claims file.

2. After the above is complete, regardless of whether additional records are obtained, arrange an orthopedic examination of the Veteran's knees by a physician. Inform the clinician that the claims file is to be reviewed, to include the 2009 and 2010 MRI examination reports. Based on the examination and records review, ask the clinician to opine whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has a currently diagnosed disorder or either or both knees? If the answer is, yes, then is it at least as likely as not that the currently diagnosed knee disorder had onset in active service or is otherwise causally connected to active service, to include the complaints and treatment noted in the STRs?

Inform the examiner further that a full explanation must be provided for all opinions provided.

3. Arrange an examination of the Veteran by an appropriate clinician to determine if he has a currently diagnosed respiratory disorder. The examination must include a review of the claims file and a specific notation as to whether there are prior PFTs of record. In any event, PFTs are to be conducted as part of the examination.

Based on the examination and records review, ask the clinician to opine whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has a currently diagnosed respiratory disorder. If the answer is yes, then is it at least as likely as not that it had onset in active service or is otherwise causally connected to active service, to include the complaints and treatment noted in the STRs?

Inform the examiner further that a full explanation must be provided for all opinions provided.

4. Arrange an examination by an appropriate clinician to determine the current extent and severity of the Veteran's service-connected skin disability. As part of the examination, the AOJ must also ask the examiner to note the outpatient entries related the Veteran's head, face or neck, and opine whether it is at least as likely that any current skin symptomatology is part of the service-connected disability? If the answer is, no, then is it at least as likely that any current skin symptomatology of the head, face of neck had onset during active service or is otherwise causally connected to active service.

Inform the examiner that the Veteran's lay report of his history and symptoms is competent and must be considered by the examiner. The examiner must provide a full explanation for all opinions provided.

5.  Upon receipt of the skin examination report, the AOJ shall review the claim under both the prior and revised skin rating criteria.

						

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.