Citation Nr: 22017187 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-47 838 DATE: March 24, 2022 ORDER Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for a right calf disability is denied. Entitlement to service connection for a left calf disability is denied. Entitlement to service connection for a right thigh disability is denied. REMANDED Entitlement to service connection for a heart condition, to include as secondary to service-connected posttraumatic stress disorder (PTSD) or, in the alternative, for compensation under 38 U.S.C. § 1151 for heart disease resulting from premature hospital release, is remanded. Entitlement to a noninitial rating in excess of 30 percent for burn scars on the left lower extremity is remanded. Entitlement to a noninitial rating in excess of 30 percent for burn scars on the right lower extremity is remanded. Entitlement to service connection for hearing loss is remanded. FINDING OF FACT The balance of the credible and competent evidence weights against the finding that the Veteran has, or have had during the claims period, a current diagnosis of fibromyalgia, a bilateral calf disability, or a right thigh disability. CONCLUSIONS OF LAW 1. The criteria to service connection for fibromyalgia, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to service connection for a right calf disability, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to service connection for a left calf disability, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria to service connection for a right thigh disability, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served active duty in the United States Air Force from August 1975 to January 1981. SERVICE CONNECTION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish direct service connection, 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). 1. Entitlement to service connection for fibromyalgia 2. Entitlement to service connection for a right calf disability 3. Entitlement to service connection for a left calf disability 4. Entitlement to service connection for a right thigh disability The Veteran claims that he currently has a disability fibromyalgia, a disability of both the left and right calf, and a right thigh disability, as a result of active service, or in the alternative, due to service-connected disabilities. The Board finds that the evidence of record shows that the Veteran currently has no diagnosable disability of either calf, the right thigh, or a diagnosis of fibromyalgia. Therefore, as the balance of the competent and credible evidence is against a finding that the Veteran has a current disability or has had the claimed disabilities during or contemporary to the claims period, the claims for service connection must be denied. The threshold consideration for any service connection claim is the existence of a current disability. In the absence of proof of a present disability, there are no valid claims for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the evidence of record shows no evidence of a diagnosis for any of his claimed disabilities, to include fibromyalgia, a disability of both the left and right calf, and a right thigh disability. An analysis of the service treatment records (STRs), service personnel records, and post-service VA/private treatment records show no diagnosable disability of the calves, right thigh, or for fibromyalgia. As an initial matter, the Board notes that a close review of the extensive VA and private treatment records reveals no evidence of treatment or diagnosis with regards to any of the Veteran's specifically claimed conditions. While the Board acknowledges that the Veteran has been treated for various disabilities related to his lower extremities, to include his bilateral knees, hips, and scars, which are all service-connected, no such treatment records have explicitly noted diagnosis of a disability specific to the Veteran's bilateral calves, or right thigh. Likewise, while the Veteran has received continuous treatment for degenerative conditions throughout this body, no record of a diagnosis for fibromyalgia has been noted. With specific regards to fibromyalgia, the Board notes that the Veteran's claim for this condition ostensibly notes that he suffered from joint pain all over his body and fatigue. The Veteran was afforded several VA examinations to assess the nature and etiology of this claimed condition, most recently in December 2021 and February 2022. During both examinations, the VA examiner physically examined the Veteran as well as a noted review of the Veteran's claims file and medical history; both VA examiners, however, concluded that there was no evidence that the Veteran had a current diagnosis of fibromyalgia. Here, while both examiners considered the Veteran's report of generalized pain, the examiners concluded that such pain was accounted for by the Veteran's other osteoarthritic conditions to include for his hips, shoulder, knees, back, and hips. To this end, the February 2022 noted that fibromyalgia is the chronic condition of generalized pain, fatigue, and sleep disturbance, that is not explained by any other medical condition. The examiner noted that not only is the Veteran's complaints of pain accounted for by the Veteran's various arthritic conditions, and his sleep apnea and PTSD (both service-connected) accounts for his sleep disturbance and fatigue. As such, the VA examiner found explicitly that no diagnosis for fibromyalgia was warranted. While the Board acknowledges that the Veteran has complaint of pain and fatigue, the Board finds that the medical evidence, to include the VA opinions are more probative, as they were provided by medical professional with the requisite medical education, training, and experience. As such evidence weighs against establishing a disability in which service connection can attach, and as such, the Veteran's claim must be denied. With regards to the Veteran's claim for a right thigh disability and bilateral calf disability, the Board notes that in VA examinations conducted in July 2018, December 2021, and February 2022, VA examiners explicitly noted negative finding for any separately diagnosable disability of the Veteran's right thigh, or bilateral calves. In review of the notes reporting the history of the Veteran's disabilities, to include those of his service-connected hips and knees, in each examination report, no history of a separately diagnosable disability was noted. To this end, the Board also notes that, cognizant of recent decision from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018), the more recent December 2021 and February 2022 VA examinations explicitly found that neither the Veteran's claimed bilateral calf disability, nor his claimed right thigh condition, caused any additional functional loss or loss of range of motion, in excess of those already accounted for by the Veteran's already service-connected knee and hips disabilities. Again, the Board finds that the VA examinations and the medical records that show no additional separate disabilities of the bilateral calves and right thigh to be highly probative and dispositive of the claim. In the absence of competent evidence of medical findings of a current disability for fibromyalgia, bilateral calf disability, and a right thigh disability, the threshold requirement for substantiating the claims for service connection is not met. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board concludes that, as the evidence persuasively favors against service connection, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Accordingly, the claims are denied. REASONS FOR REMAND 1. Entitlement to service connection for a heart condition, to include as secondary to service-connected PTSD or, in the alternative, for compensation under 38 U.S.C. § 1151 for heart disease resulting from premature hospital release, is remanded. With regard to the claims for service connection for a heart condition, the Veteran's claim was previously remanded to acquire a VA examination to address the nature and etiology of his claimed heart condition. A VA examination was afforded to the Veteran in December 2021 and February 2022 to assess the nature and etiology of the claimed disability. The Board finds that both the VA examinations to be inadequate, as they fail to provide an adequate opinion regarding the Veteran's §1151 claim regarding the etiology of the Veteran's claimed heart condition. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, remand is required for the VA to fulfills its duty to the Veteran. A close review of both the December 2021 and February 2022 opinions reveal that the reports inadequately address the central premise of the Veteran's entitlement claim, which is based in an §1151 claim regarding the quality of care he received for pneumonia by the VA in 2010. The Veteran claims that his heart condition developed as a result of the lack of care provided to him in September 2010, and he was not only misdiagnosed, but negligently released from the VA medical center prematurely. The Board noted that in reviewing the December 2021 opinion, the examiner tersely noted that there was no negligence on the part of the VA, but provided no rationale, whereas the February 2022 report provided no opinion regarding such claim. As such, an addendum opinion is required to address this issue. 2. Entitlement to a noninitial rating in excess of 30 percent for burn scars on the left lower extremity is remanded. 3. Entitlement to a noninitial rating in excess of 30 percent for burn scars on the right lower extremity is remanded. The Board also finds that the newly acquired VA examinations in December 2021 and February 2022 to be inadequate also with regards to the evaluation of the nature and severity of the Veteran's burn scars. Here, the Board notes that in providing the objective surface area of the Veteran's burn scars, there is a huge discrepancy between the December 2021 examination report and the one in February 2022. The Board notes that these scars of the bilateral lower extremities only measured around 625 square centimeters, for each leg in December 2021; however, just a few months later in February 2022, the total area was reported at 4,115 and 2,617 square centimeters, for the right and left legs, respectively. A close review of the February 2022 examination and the surrounding evidence does now demonstrate any explanation with regards to the increase in surface area. The Board finds that such dramatic increase in surface area is at a magnitude requires a basis and/or rationale from the examiner, to ensure that such measurements were not reported in error or does not encompass other scars not contemplated by this particular rating. As such, the Board finds that the February 2022 VA examination inadequate, and remand is required for an addendum opinion from the same examiner. 4. Entitlement to service connection for hearing loss is remanded. With regard to the claim for service connection for a bilateral hearing loss, the Board finds that the most recently obtained VA examination and nexus opinion in August 2019 is inadequate, and remand is required to obtain additional opinion for the VA to fulfill the duty to assist the Veteran. The Board finds that the August 2019 VA examination is inadequate, as it no longer represents the current disability picture of the Veteran's hearing loss disability. Here, the Board notes that since his last exam, more than two and half years ago, the Veteran has asserted that his condition has worsened, and may have become more severe, to include potentially being an actual diagnosis of hearing loss for VA purposes. Here, the Board notes that the Veteran's last examination noted his Maryland CNC score to be 94 in both ears, which is on the cusp of being considered hearing loss for VA purposes. As such, the Board finds that any increased in severity could be significant in the consideration of the claim. Furthermore, the Board notes that despite the Veteran's previously note meeting the criteria for hearing loss, the VA examiner provided a nexus opinion regarding the Veteran's claimed condition. A close review of that nexus opinion reveals that such is also inadequate. Specifically, the VA examiner ostensibly dismisses the Veteran's contention of inservice noise trauma, noting that the Veteran's military occupational specialty (MOS) was low risk of noise trauma. The examiner provided no consideration of the Veteran's actual lay assertions regarding the actual conditions of his active service as a cook, and the type of situations which arose that may have caused noise trauma, to include training on the flight line. As such, the Board finds that the last VA examination to be inadequate and remand is required. The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After the above development is completed, schedule the Veteran for a VA in-person medical examination to determine the nature of any current heart disability and to obtain an opinion whether such is related to treatment provided to the Veteran's, or therein lack of, for his pneumonia in September 2010 at a VA medical center or VA outpatient clinic. The examiner must review the claims file in conjunction with the examination. Any indicated tests should be conducted. Based upon a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) in answering these questions, the examiner should seek independent corroboration for any history provided by the Veteran, because the Veteran has provided histories which have omitted material facts and thus have been contrary to the objective historical record; (b) does the Veteran have a heart disability; (c) if so, the examiner should review records of the Veteran's medical history with regards to his treatment in September 2010 for pneumonia, as well as all follow-up care related to such. The examiner should then opine whether it is at least as likely as not (50 percent likelihood or more) that the development of a heart condition was reasonably foreseeable in the course of such treatment by the VA. If so, the examiner should speak to as to whether such condition, is due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care. In answering this question, the examiner should address the relative likelihood that an event resulting in such care could result in a heart disability as described/claimed by the Veteran; and (d) the examiner should provide a complete rationale (explanation supported by evidence of record as well as the physician's medical knowledge/expertise) for the opinions provided. 3. Schedule the Veteran for a VA scar examination with the same examiner who conducted the February 2022 VA examination, to determine the current severity of his burn scars of his bilateral lower extremities. If that examiner is not available, the Veteran's file should be provided to an appropriately qualified examiner who can determine the nature and severity of the Veteran's burn scars. The examiner must review the claims file and should note that review in the report. The examiner should provide measurements of the scar and should state whether the BURN scars is painful or unstable. The examiner should describe whether or not there are any functional limitations resulting from the BURN scars. The examiner must provide a rationale with regards to any significant differentials between the objective measurements of the BURN scars taken and those recorded in December 2021 and February 2022. 4. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of hearing loss. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner must review the claims file and must note that review in the report. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that hearing loss is related to active service, to include any exposure to noise during service. The examiner should provide a rationale for the opinion that explicitly addressed the Veteran's lay contentions of noise trauma during his active service. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.