Citation Nr: 22012269 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 18-53 714 DATE: March 3, 2022 ORDER Entitlement to service connection for traumatic brain injury (TBI) is denied. Entitlement to service connection for facial burn scars is denied. REMANDED Entitlement to a rating greater than 10 percent for service-connected right lower extremity peripheral neuropathy is remanded. Entitlement to a rating greater than 10 percent for service-connected left lower extremity peripheral neuropathy is remanded. Entitlement to a rating greater than 20 percent for service-connected diabetes is remanded. Entitlement to service connection for a headache condition is remanded. Entitlement to service connection for residual scar tissue in the right eye is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a TBI. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of facial burn scars. CONCLUSIONS OF LAW 1. The criteria for service connection for traumatic brain injury (TBI) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for facial burn scars are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1966 to September 1969. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Campaign Medal. This matter is before the Board of Veterans' Appeal (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in October 2021. A transcript of the hearing is in the Veteran's file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability, when such evidence indicates that unemployability is due, at least in part, to the underlying disability on appeal. The record reflects that the Veteran reported issues with employability due to his service-connected disabilities. The issue of entitlement to TDIU is therefore found to have been raised in connection with the claims here on appeal, and it has been added to the above list of issues before the Board. SERVICE CONNECTION Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). 1. Entitlement to service connection for traumatic brain injury (TBI) is denied. The Veteran asserts that that service connection is warranted for a TBI. The initial threshold question for the Board is whether the Veteran has a current disability, and if so, whether that disability 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 related to a TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; Romanowsky, 26 Vet. App. at 294(2013); McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303 (a), (d). Review of the record indicates, there is no evidence of record which reflects a current diagnosis of a TBI. The June 2017 VA TBI residuals examination did not reveal a diagnosis of TBI. The VA examiner also found that the Veteran did not suffer from any residuals of TBI as well. While the Veteran believes that he has a diagnosis of a TBI, to include any residuals, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. 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 provided by the June 2017 VA examiner. Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran currently has a TBI with any residuals. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to a TBI, and thus, further discussion of the in-service incurrence or nexus elements is unnecessary. Furthermore, based on the reasons and bases discussed, as evidence for the claim is not in approximate balance, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for a TBI. 2. Entitlement to service connection for facial burn scars is denied. The Veteran is service connection for facial burn scars. The Veteran suffered 2nd degree burns of a result of an in-service welding incident. The Board, however, concludes that the Veteran does not have a current diagnosis related to a facial scar and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; Romanowsky, 26 Vet. App. at 294(2013); McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303 (a), (d). Review of the record indicates, there is no evidence of record which reflects a current diagnosis of any scars or disfigurements to the Veteran's face. The June 2017 VA scars/disfigurement examination did not find any evidence of scars or disfigurement to the Veteran's head, face, or neck. The VA examiner acknowledged that the Veteran suffered from in-service burns due to a welding explosion but found no evidence of noticeable scars to the face. While the Veteran believes that he has a diagnosis of facial scars, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. 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 provided by the June 2017 VA examiner. Thus, the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran currently has any scars or disfigurement to the Veteran's face, neck, and head. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to facial scars, and thus, further discussion of the in-service incurrence or nexus elements is unnecessary. Furthermore, based on the reasons and bases discussed, the evidence for the claim is not in approximate balance, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for facial burn scars. REASONS FOR REMAND 1. Entitlement to a rating greater than 10 percent for service-connected right lower extremity peripheral neuropathy is remanded. 2. Entitlement to a rating greater than 10 percent for service-connected left lower extremity peripheral neuropathy is remanded. 3. Entitlement to a rating greater than 20 percent for service-connected diabetes is remanded. The Veteran is seeking increased ratings for his service-connected bilateral lower extremity peripheral neuropathy and diabetes. The Veteran was last afforded VA examination to determine the severity of the Veteran's bilateral lower extremity peripheral neuropathy and diabetes in September 2017. Since that time the Veteran has indicated that the severity of his disabilities has worsen since then and the September 2017 VA examinations are not indictive of their severity. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the reported increase in severity of the Veteran's bilateral lower extremity peripheral neuropathy and diabetes, the Board of Veterans' Appeals (Board) finds that further VA evaluation is needed. 4. Entitlement to service connection for a headache condition is remanded. 5. Entitlement to service connection for an eye condition, to include residual scar tissue in the right eye, is remanded. The Veteran is also seeking service connection for a headache condition and eye condition. He contends that both conditions are related to an in-service welding incident. To that end, the Veteran was afforded VA examination in June 2017 to determine the nature and etiology of his claimed disabilities. The Veteran was diagnosed with tension headaches. The VA examiner did not find any scar tissue of the right eye but did find evidence of bilateral cataracts. The June 2017 VA examiner, however, did not provide etiological opinions as to whether the Veteran's tension headaches and bilateral cataracts were related to the Veteran's service, to include in-service welding explosion. As such, further medical guidance is necessary to address the etiology of each condition. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran's claimed disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to a TDIU is remanded. A claim for a TDIU has been raised by the record, and the Veteran has filed a formal claim for that benefit. This claim, however, is inextricably intertwined with the issue of entitlement to increased ratings for service-connected bilateral lower extremity peripheral neuropathy and diabetes, as the development for that issue could potentially affect his TDIU claim. Review of the claims file indicates that the Veteran has not submitted a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). While such a form is not strictly required for the Board to adjudicate this claim, determining whether a TDIU is warranted is based on a number of factors, including the Veteran's work history, his education, and whether he has sought employment. All this information is contained on the applicable formal claim for a TDIU, and it would be of great benefit to the Board or to VA decision-makers in determining whether a TDIU is warranted. Accordingly, the Board shall direct that the Veteran be provided a formal application for a TDIU. The Veteran is advised that the information on this form is crucial, and that failure to return the form or to provide the requested information in any other medium may result in a decision being made on a less than full record, or even in the denial of this claim. The matters are REMANDED for the following actions: 1. Provide the Veteran VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Conduct any necessary development required if this form is returned. 2. Schedule the Veteran for an examination to determine the nature and severity of the Veteran's service-connected bilateral lower extremity radiculopathy. The Veteran's claims file, including a copy of this remand, must be provided to the examiner prior to the examination. The examiner should consider the Veteran's lay statements regarding the severity of his symptoms and report all signs and symptoms necessary for rating the Veteran's disability under the applicable criteria, 38 C.F.R. § 4.124(a). 3. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected DMII. All necessary tests should be performed. A copy of this remand and the claims file should be reviewed. The examiner should report all signs and symptoms necessary for rating the Veteran's DMII under the applicable criteria, 38 C.F.R. § 4.119, Diagnostic Code 7913. 4. Obtain an opinion from an appropriate examiner as to the possible relationship between the Veteran's current headache condition and his active service. The examiner is to state whether it is at least as likely as not that any identified headache disability, to include tension headaches, had its onset during or is otherwise related to the Veteran's active service, to include in-service welding incident. 5. Obtain an opinion from an appropriate examiner as to the possible relationship between the Veteran's current eye condition and his active service. (Continued on next page) The examiner is to state whether it is at least as likely as not that any identified eye disability, to include cataracts, had its onset during or is otherwise related to the Veteran's active service, to include in-service welding incident. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.