judge_norm: TANYA SMITH

text:
��Citation Nr: 20023000

Decision Date: 04/02/20	Archive Date: 04/02/20

DOCKET NO. 17-38 837

DATE: April 2, 2020

ORDER

Entitlement to attorney fees in the amount of $33,807.93 based on the March 2017 award of past due benefits made to the Veteran for the grant of entitlement to a 100 percent rating for posttraumatic stress disorder (PTSD) is denied.

FINDINGS OF FACT

1. An August 2006 RO rating decision granted the Veteran s claim of entitlement to service connection for PTSD and assigned an initial 30 percent rating effective January 27, 2006.

2. The Veteran initiated his appeal of the initial PTSD rating by filing a notice of disagreement in October 2006; a statement of the case was issued in September 2007; and his substantive appeal was received in October 2007.

3. The Board remanded the claim of entitlement to an increased rating for PTSD in January 2013.

4. The appellant and the Veteran entered into a fee agreement in December 2015.

5. In a March 2017 rating decision, the RO granted entitlement to an initial rating of 100 percent for PTSD effective April 11, 2008.

CONCLUSION OF LAW

The criteria for the award of fees to the appellant based on past due benefits from the March 2017 rating decision granting entitlement to a 100 percent rating for PTSD have not been met.  38 U.S.C. � 5904 (2005); 38 C.F.R. � 14.636 (2005).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1965 to June 1968, and the appellant has been (and continues to be) his attorney representative in matters appealed to the Board of Veterans  Appeals (Board).  The appellant and the Veteran entered into a fee agreement in December 2015.

This matter comes before the Board on appeal from a March 2017 administrative decision, which determined that no attorney fees could be paid directly to the appellant from the grant of increased rating benefits for PTSD from a March 2017 rating decision.

Entitlement to attorney fees in the amount of $33,807.93 based on the March 2017 award of past due benefits made to the Veteran for the grant of entitlement to a 100 percent rating for PTSD is denied.

In the case at hand, the appellant (who is the Veteran s attorney) contends that he is entitled to attorney fees totalling 20 percent of the past due benefits following the RO s grant of entitlement to a higher initial 100 percent rating for PTSD.  Specifically, in a March 2017 rating decision, the Veteran s PTSD rating was increased from 30 percent to 100 percent, effective from April 11, 2008, through May 16, 2012, and from 50 percent to 100 percent, effective on and after May 17, 2012.  The Veteran s past due benefits arising from this rating decision totaled $169,039.66.  The appellant contends that he is entitled to attorney fees totalling $33,807.93, which is 20 percent of this award.

The appellant contends that receipt of attorney fees is warranted for his representation of the Veteran s claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.

Under the pertinent law, a claimant is permitted to retain a VA-accredited attorney for the preparation, presentation, and prosecution of claims under laws administered by the Secretary.  38 U.S.C. � 5904(a).

Under the law as it existed prior to December 22, 2006, attorneys could not charge fees for services provided to VA claimants until after the Board had first made a final decision in the case.  See 38 U.S.C. � 5904(c)(1), (c)(2) (West 2002); 38 C.F.R. � 20.609(g) (2005).  On December 22, 2006, the law governing the circumstances under which attorney fees may be charged was amended.  See Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, 120 Stat. 3403 (2006).

In cases in which a notice of disagreement was filed on or before June 19, 2007, attorneys could only charge fees for services provided after both of the following conditions have been met: (1) a final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal; and (2) the attorney was retained not later than one year following the date that the decision by the Board was promulgated.  38 C.F.R. � 14.636(c)(2).

Pursuant to the amended law, attorneys may charge claimants or appellants for representation provided that after an Agency of Original Jurisdiction (AOJ) has issued a decision on a claim or claims, including any claim to reopen under 38 C.F.R. � 3.156 or for an increase in rate of a benefit: (1) a notice of disagreement has been filed with respect to that decision on or after June 20, 2007; and (2) the attorney has complied with the power of attorney requirements in 38 C.F.R. � 14.631 and the fee agreement requirements in 38 C.F.R. � 14.636(g).  38 C.F.R. � 14.636(c).

The appellant, in essence, has put forth two contentions.  These contentions have been articulated in detail in a March 2017 e-mail exchange between the appellant and VA and in a July 2017 statement from the appellant s representative.

First, the appellant contends that the issue for which he is representing the Veteran (entitlement to a TDIU) arose in connection with a May 2009 notice of disagreement, and that therefore the post-amendment laws apply.  (The appellant s claim has been denied in the past based on a finding that it arose in connection with an October 2006 notice of disagreement.)

Second, the appellant contends that, even if the Board were to find that the TDIU claim arose from a notice of disagreement that was submitted prior to June 20, 2007, attorney fees should be granted based on the fact that the RO  was going to grant TDIU, but he(vet) would be more favorably rated at 100% [for PTSD] - I don t think you can separate the two?   (See March 2017 e-mail exchange between appellant and VA.)

The pertinent history is as follows:

The Veteran filed a claim for entitlement to service connection for PTSD in January 2006.  This claim was granted in an August 2006 rating decision, and a 30 percent rating was assigned effective January 27, 2006.

On October 30, 2006, the Veteran filed a notice of disagreement in which he disputed the assigned rating.  In September 2007, VA issued a statement of the case that continued the 30 percent rating.  In October 2007, the Veteran filed a VA Form 9 substantive appeal.  In January 2008, a supplemental statement of the case again continued the 30 percent rating.

In December 2008, the Veteran submitted a VA Form 21-8940,  Veteran s Application for Increased Compensation Based on Unemployability,  in which he reported that he is unemployable due to PTSD and residuals of a traumatic brain injury.  This claim was denied in a March 2009 rating decision.  The Veteran filed a notice of disagreement with the denial of TDIU in May 2009.

In August 2009 and October 2009, supplemental statements of the case were issued continuing the 30 percent PTSD ratings.  (In December 2009, the Veteran submitted another substantive appeal.  However, because the Veteran had already perfected his appeal with respect to this claim in October 2007, a new substantive appeal was not needed.)

In June 2012, VA issued a rating decision that increased the Veteran s PTSD rating from 30 percent to 50 percent, effective May 17, 2012.  In July 2012, a supplemental statement of the case was issued that continued the 50 percent rating.

In September 2012, the RO certified the Veteran s appeal to the Board.

In January 2013, the Board remanded the claim of entitlement to an increased rating for PTSD for a new VA examination and to obtain records.  In addition, the Board noted that entitlement to a TDIU had been denied in a March 2009 rating decision and that the Veteran had submitted a notice of disagreement in response to this denial.  (That notice of disagreement had been submitted in May 2009.)  However, a statement of the case had not yet been issued.  Thus, the Board remanded this claim in January 2013 for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  The statement of the case that continued the TDIU denial was issued in August 2016, and the Veteran submitted his substantive appeal later that month.

In August 2016, the RO completed a VA Form 8 that certified the TDIU claim, but not the claim of entitlement to an increased rating for PTSD, to the Board.  That claim had not been adjudicated by the Board prior to the March 2017 rating decision that will be described next.

In a March 2017 rating decision, the Veteran s PTSD rating was increased from 30 percent to 100 percent, effective from April 11, 2008, through May 16, 2012, and from 50 percent to 100 percent, effective on and after May 17, 2012.  This rating decision also granted entitlement to special monthly compensation based on housebound status and basic eligibility to Dependents  Educational Assistance, both effective April 11, 2008.

That month, the appellant submitted a statement noting that the March 2017 rating decision  will satisfy the veteran s appeal for post-traumatic stress disorder (PTSD) and total disability based on individual unemployability (TDIU).

In the July 2017 statement, the appellant s representative raises contentions that suggest that the submission of the May 2009 notice of disagreement is the event that has triggered the appellant s eligibility for attorney fees.  In fact, in its January 2013 remand, the Board erroneously asserted that the TDIU claim had arisen from the March 2009 rating decision and subsequent notice of disagreement, and it had remanded the claim to issue a statement of the case and give the Veteran the opportunity to file a substantive appeal.

In connection with this contention, in the July 2017 statement, the appellant s representative suggests that VA has misread 38 U.S.C. � 5904(c)(1) to erroneously suggest that the October 2006 notice of disagreement is the only notice of disagreement that triggers the right to charge and receive attorney fees.  The representative explains his argument as follows:

The plain language of � 5904(c)(1) defines the triggering event for the right to charge and receive a fee as  a notice of disagreement is filed with respect to the case.   It does not define as the prior version of the statute did a  first final Board decision.   The VA has read into the language of � 5904(c)(1) a requirement for a  first  notice of disagreement when the statute imposes no such requirement.

Rather, the July 2017 statement, contends,  The right to charge and receive a fee arose in this case with [the Veteran s] May 2009 notice of disagreement.   The Board notes that this contention may find support in the portion of the Board s January 2013 remand, mentioned above, that notes that the TDIU claim arose from a March 2009 rating decision (and a May 2009 notice of disagreement).  The Board s remand thus implies that the May 2009 notice of disagreement had the legal effect of initiating the appeal of the TDIU claim.

However, the Board s January 2013 remand of the TDIU claim to give the Veteran the opportunity to perfect a TDIU claim was not just unnecessary, but was legally erroneous as well, as the TDIU claim had already, in fact, been perfected to the Board.  Had the Veteran not filed a timely substantive appeal following the issuance of the August 2016 statement of the case, the issue of entitlement to a TDIU would still be before the Board for consideration pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Thus, while the Veteran did file a  Statement in Support of Claim  on which he requested that the RO  Please consider this a formal Notice of Disagreement with the 3-17-09 decision,  this statement did not have the legal effect of a notice of disagreement for purposes of perfecting an appeal.  It cannot legally be considered to be a  notice of disagreement,  despite having expressly been labeled as such by the Veteran and by the Board s January 2013 remand.

Thus, the Board finds that the submission of the May 2009 notice of disagreement did not trigger the appellant s eligibility to receive attorney fees based on the Veteran s TDIU claim.  Consequently, the Board finds that the version of 38 U.S.C. � 5904(c)(1) that applied following the December 2006 amendment (the version that the July 2017 representative s statement asserts has been misinterpreted by VA) does not apply in this case, and the representative s assertions of a misinterpretation of that statute are immaterial to the resolution of this claim.

The Board must find that the TDIU claim only arose from the initial January 2006 rating decision and the October 2006 notice of disagreement that initiated an appeal of the rating that was assigned in the January 2006 decision.  This determination expressly follows established caselaw:

[W]e hold that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation.

Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009).

The Board finds that the issue of entitlement to a TDIU was reasonably raised by the record.  Specifically, an extremely thorough private psychological evaluation dated on April 11, 2008, and received by VA on June 19, 2008, reasonably raised a claim that the Veteran is unemployable due specifically and exclusively to his PTSD.  Following an extensive clinical interview and testing, the licensed psychologist assessed a global assessment of functioning score of 34.  He noted that this score  represents [the Veteran s] inability to work, his difficult family relations, poor judgment, thinking and mood problems and his increasingly disrupted ability to sustain emotional control.  [The Veteran s] current condition puts him and others at risk if he were to pursue any form of occupational responsibility.

The Board notes that this record was submitted after the Veteran had perfected his increased rating appeal and was considered in VA s readjudication of the Veteran s claim in August 2009.  Thus, the TDIU claim is considered to have been raised as part of the Veteran s initial claim for increased compensation.  The Board consequently finds that  the determination of whether [the Veteran] is entitled to TDIU &  is part and parcel of the determination of the initial rating for that disability.   Rice v. Shinseki, 22 Vet. App. 447, 455-56 (2009).

Having found that the pre-2006 amendment version of 38 U.S.C. � 5904 applies in this case, the Board will next turn to the appellant s second contention.  Specifically, as noted above, the appellant contends that, even if the Board were to find that the TDIU claim arose from a notice of disagreement that was submitted prior to June 20, 2007, the fact is that the RO  was going to grant TDIU, but he(vet) would be more favorably rated at 100% [for PTSD] - I don t think you can separate the two?   (See March 2017 e-mail exchange between appellant and VA.)

That is, the appellant contends that attorney fees are warranted because, had the TDIU claim been adjudicated, it would have been granted, which would have resulted in attorney fees being awarded to the appellant.  As discussed above, the Board finds that the TDIU claim has arisen from the October 2006 notice of disagreement, and not from the May 2009 notice of disagreement.  Therefore, the TDIU claim itself is part and parcel of the Veteran s initial increased rating claim and that any award based on a hypothetical grant of a TDIU would not have been subject to attorney fees.

Furthermore, the TDIU claim was not, in fact, granted.  Thus, no award was made to the Veteran based on a TDIU grant.  An award of attorney fees that may (or may not) have been granted had that claim been granted on its merits would run contrary to the  congressional intent to protect veterans benefits from improper diminution by excessive legal fees.   Scates v. Principi, 282 F.3d 1362, 1366 (Fed. Cir. 2002).

In short, the Board finds that the claim of entitlement to attorney fees arose from a notice of disagreement that was received by VA prior to the December 2006 amendment to 38 U.S.C. � 5904, and not from a May 2009 notice of disagreement.  Thus, there was no triggering event to recognize an eligibility of the appellant to receive attorney fees based on the award of past due benefits to the Veteran.  Consequently, the claim is denied.

TANYA SMITH

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Elizabeth Jalley, 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.


series: legacy

judge_norm: L M BARNARD

judge_role: Veterans Law Judge

disposition: denied

disposition: remanded

condition: hypertension

condition: psychiatric

condition: shoulder

text:
��Citation Nr: 20024000

Decision Date: 04/08/20	Archive Date: 04/08/20

DOCKET NO. 16-58 480

DATE: April 8, 2020

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for persistent depressive disorder with anxious distress and panic attacks is remanded.

Entitlement to service connection for right shoulder impingement syndrome with bicipital tendonitis is remanded.

Entitlement to service connection for sleep apnea is remanded.

Entitlement to service connection for left elbow lateral epicondylitis (claimed as left arm and elbow pain) is remanded.

Entitlement to service connection for a bilateral foot condition, to include bilateral pes planus and heel spurs (claimed as heel pain), is remanded.

FINDING OF FACT

A current hearing loss disability for VA purposes, as defined by 38 C.F.R. � 3.385, is not shown.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from July 1992 to July 1996.

The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record.  Robinson v. Mansfield, 21 Vet. App. 545 (2008).

Accordingly, the Board has recharacterized the claims as indicated above to afford the Veteran the broadest possible scope of review.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).

In February 2020, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. � 3.303 (d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff d, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. �� 1101, 1112, 1137; 38 C.F.R. �� 3.307, 3.309.

Alternatively, when a disease at 38 C.F.R. � 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. � 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. � 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time, he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term  disability  means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. � 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292 (1991).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. � 5107 (b); 38 C.F.R. � 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Entitlement to service connection for bilateral hearing loss is denied.

The Veteran alleges that he has bilateral hearing loss as a result of his active duty service.  Specifically, he contends that he suffered acoustic trauma in service as a result of his time as a firefighter where he was subject to loud sirens and equipment, which has caused his claimed hearing loss.

The Veteran s service treatment records are silent for complaints, treatment, or diagnoses related to hearing loss.  On service enlistment examination in February 1992 pure tone thresholds, in decibels, were as follows:

	500	1000	2000	3000	4000	6000

Right	15	0	0	5	0	15

Left	10	0	0	5	5	10

Speech recognition ability was not tested at the time.  On additional audio testing conducted during service in January 1993, pure tone thresholds, in decibels, were as follows:

	500	1000	2000	3000	4000	6000

Right	15	10	0	10	10	0

Left	5	0	0	0	0	20

Additional audio testing was conducted in May 1994. Testing revealed pure tone thresholds, in decibels of:

	500	1000	2000	3000	4000	6000

Right	5	0	0	5	0	5

Left	0	0	0	5	15	15

Audio testing was again conducted in August 1995. Testing revealed pure tone thresholds, in decibels of:

	500	1000	2000	3000	4000	6000

Right	5	0	0	0	0	10

Left	5	0	0	5	0	5

Speech recognition ability was again not tested. Considering the dates of all of the Veteran s in-service audio testing and the lack of indications otherwise, they were presumably conducted under the ISO-ANSI standard and, therefore, no conversion is necessary.

On September 2015 examination, pure tone thresholds, in decibels, were:

	500	1000	2000	3000	4000	6000	8000	AVG

Right	15	5	10	10	10	5	20	10

Left	15	15	15	10	10	10	5	12.5

Speech audiometry revealed speech recognition ability of 100 in both ears, however the examiner found that the use of speech discrimination scores was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that made combined use of pure tone average and speech discrimination inappropriate.  The examiner found no significant threshold shifts during service and that the Veteran s hearing was within normal limits bilaterally.

As a threshold matter, the Board notes that VA defines a hearing loss disability as when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. � 3.385.

With that in mind, the Board finds that, here, there is no evidence that the Veteran has a current bilateral hearing loss disability pursuant to 38 C.F.R. � 3.385.  In so finding, the Board is sympathetic to the Veteran s claim that he has bilateral hearing loss and does not doubt his statements regarding excessive or hazardous noise exposure in service.  However, unlike tinnitus, which is a simple disability diagnosable by lay observation, hearing loss is a more complex disability that cannot be diagnosed independently by the Veteran.  Moreover, as noted above, VA specifically defines hearing loss disability as involving a certain threshold of impairment, confirmed by audiometric studies, which he has not been shown to meet under any audiometric test of record.  Absent evidence that confirms present bilateral hearing loss disability for VA purposes, there is no valid claim of service connection, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied.  Brammer, 3 Vet. App. at 225.

REASONS FOR REMAND

Entitlement to service connection for hypertension, persistent depressive disorder with anxious distress and panic attacks, right shoulder impingement syndrome with bicipital tendonitis, sleep apnea, left elbow lateral epicondylitis (claimed as left arm and elbow pain), and a bilateral foot condition, to include bilateral pes planus and heel spurs (claimed as heel pain), are remanded.

Although the Board regrets the delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran s remaining claims.  38 U.S.C. � 5103A; 38 C.F.R. � 3.159.

The Veteran alleges that his claimed conditions, while not treated during service, began in service, were the result of physical and mental stress in service, and have continued since.  He contends that he self-medicated and  pushed  through the pain.  See February 2020 hearing testimony.

The Veteran s service treatment records are silent for any complaints, treatment or diagnoses of hypertension, a mental health disorder, a right shoulder condition, sleep apnea, heel spurs, or a left elbow condition.  However, the Veteran s entrance examination noted that the Veteran had asymptomatic bilateral pes planus.

VA s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. � 5103A (d); 38 C.F.R. � 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  For below noted reasons, the Board finds that additional VA examinations are needed to determine the nature and etiology of the Veteran s claimed hypertension, persistent depressive disorder with anxious distress and panic attacks, right shoulder impingement syndrome with bicipital tendonitis, sleep apnea, left elbow lateral epicondylitis (claimed as left arm and elbow pain), and a bilateral foot condition, to include bilateral pes planus and heel spurs (claimed as heel pain).

The Board notes that in September 2015 the Veteran underwent VA examinations for his claimed hypertension, mental health disorder, right shoulder condition, sleep apnea, left elbow condition and bilateral foot conditions.  The examiners reviewed the Veteran s claims file and completed examinations of the Veteran and diagnosed the Veteran with depressive disorder with anxious distress and panic attacks, left elbow lateral epicondylitis, right shoulder impingement and bicipital tendonitis, bilateral pes planus with calcaneal spurs, and hypertension.  However, the examiners did not provide etiological opinions.  Therefore, on remand addendum opinions with etiological opinions should be obtained.

Furthermore, regarding the Veteran s claim for a bilateral foot condition, the Board notes that the Veteran s bilateral pes planus was noted during his service entrance examination in February 1992.  However, the September 2015 VA examiner failed to note such.

A Veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C. � 1111 (West 2012); 38 C.F.R. � 3.304 (b) (2017); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). Clear and unmistakable evidence means that the evidence  cannot be misinterpreted and misunderstood, i.e., it is undebatable.  Vanerson v. West, 12 Vet. App. 254, 258 (1999). The clear and unmistakable evidence standard is an  onerous  one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)).

As previously noted, the September 2015 examiner not only provided no etiological opinion, but also failed to note whether the Veteran s bilateral pes planus existed prior to service and whether such was aggravated by his active duty service. Therefore, on remand not only must an etiological opinion but obtained, but the opinion must determine whether or not there was clear and unmistakable evidence that the Veteran s diagnosed bilateral pes planus preexisted his service.  And if preexisting, whether such was clearly and unmistakably not aggravated beyond its natural progression by his service.  Furthermore, there is no indication of whether such is a congenital defect or disease, which is particularly important because, unlike congenital defects, which are not compensable, congenital diseases are. Therefore, the addendum opinion, must also determine whether his condition constitutes a noncompensable defect or a compensable disease.

Finally, regarding the Veteran s claim for sleep apnea, the September 2015 VA examiner found that the Veteran did not have a current diagnosis.  However, August 2016 treatment notes confirm a diagnosis. Therefore, an addendum opinion which considers the Veteran s current diagnosis and his allegations that such began in service and have continued ever since should be obtained.

Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record.

The matters are REMANDED for the following action:

1.  Obtain updated treatment records.

2. The Veteran should be provided with VA examinations to determine the nature and etiology of his claimed hypertension, persistent depressive disorder with anxious distress and panic attacks, right shoulder impingement syndrome with bicipital tendonitis, sleep apnea, left elbow lateral epicondylitis (claimed as left arm and elbow pain), and a bilateral foot condition, to include bilateral pes planus and heel spurs (claimed as heel pain). The claims file should be made available to the examiners.

The examiners should respond to the following:

A) Identify all manifestations of the Veteran s hypertension.

(1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran s hypertension began during or is in any way related to his service?

The rationale for any opinion offered should be provided.

B) Identify all diagnoses of the Veteran s mental health disabilities, to include persistent depressive disorder with anxious distress and panic attacks.

(1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran s mental health disabilities began during or are in any way related to his service?

The rationale for any opinion offered should be provided.

C) Identify all manifestations of the Veteran s right shoulder disability, to include right shoulder impingement syndrome with bicipital tendonitis.

(1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran s right shoulder disability, to include right shoulder impingement syndrome with bicipital tendonitis, began during or is in any way related to his service?

The rationale for any opinion offered should be provided.

D) Identify all manifestations of the Veteran s sleep apnea.

(1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran s sleep apnea began during or is in any way related to his service?

The rationale for any opinion offered should be provided.

E) Identify all manifestations of the Veteran s left elbow disability, to include left elbow lateral epicondylitis (claimed as left arm and elbow pain).

(1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran s left elbow disability, to include left elbow lateral epicondylitis (claimed as left arm and elbow pain), began during or is in any way related to his service?

The rationale for any opinion offered should be provided.

F) Identify all manifestations of the Veteran s bilateral foot condition, to include bilateral pes planus and heel spurs.

(1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran s bilateral foot condition, (other than pes planus) to include heel spurs are related to his service?

The rationale for any opinion offered should be provided.

(2) Is the Veteran s bilateral pes planus, a congenital defect or congenital disease?

The examiner must provide a detailed answer which explains the difference between a congenital defect and a congenital disease and applies such distinction to the current case to indicate which description best fits the disability in question.

If the Veteran s bilateral pes planus is deemed to be a congenital disease,

Did the disability clearly and unmistakably exist prior to the Veteran s active service? If so, was such preexisting disability clearly and unmistakably NOT aggravated by active service?

The Board notes that the Veteran s lay statements alone are not a sufficient basis to support a finding that bilateral pes planus clearly and unmistakably existed prior to active service.

With regard to any bilateral pes planus NOT found to clearly and unmistakably exist prior to the Veteran s active service or that was not clearly and unmistakably not aggravated, the examiner should opine as to whether it is at least as likely as not (50 percent or better probability) that any such disability began in service, was caused by service or is otherwise etiologically related to such service.

A complete rationale must be provided for any opinion offered.

L. M. BARNARD

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	J. Unger, 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.


judge_norm: NATHAN KROES

disposition: granted

condition: tinnitus

condition: back

text:
��Citation Nr: 20025000

Decision Date: 04/10/20	Archive Date: 04/10/20

DOCKET NO. 17-11 621

DATE: April 10, 2020

ORDER

Entitlement to service connection for tinnitus is granted.

REMANDED

Entitlement to service connection for bilateral hearing loss disability is remanded.

Entitlement to service connection for an acquired psychiatric disorder is remanded.

Entitlement to service connection for a lower back disability is remanded.

Entitlement to service connection for a sciatic nerve disability, to include as secondary to a lower back disability, is remanded.

FINDING OF FACT

The Veteran s tinnitus onset during his active service.

CONCLUSION OF LAW

The criteria for service connection for tinnitus have been satisfied.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active air service from August 1964 to August 1968, to include service in the Republic of Vietnam.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a September 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).  In December 2019, the Veteran testified before the undersigned Veterans Law Judge in regard to his current claims on appeal.  A transcript of the hearing is included with the claims file.

Service Connection for Tinnitus

Generally, to establish service connection, a claimant 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.  See 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system like tinnitus.  See 38 C.F.R. �� 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes.  38 C.F.R. � 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. � 3.303(b).  In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 C.F.R. �� 3.307(a)(3), 3.309(a).

The Veteran asserts that he has tinnitus as a result of acoustic trauma sustained in active service.  Specifically, the Veteran reported that during active service he was exposed to hazardous noise in the form of gun fire and bomb blasts while in the Republic of Vietnam.  The Board finds that the Veteran s report of exposure to gunfire during service in Vietnam to be credible and consistent with his military occupational specialty (MOS) as a telephone cable specialist serving in a hostile area.  Therefore, the Board finds that the Veteran was exposed to loud noises during active service.

Service treatment records (STRs) do not show that the Veteran reporting complaints of tinnitus.  However, at his December 2019 hearing before the Board, the Veteran testified that he first experienced hissing in his ears while he was in active service and that his symptoms have continued since that time.  The Veteran is competent to report when he first had symptoms of tinnitus and that such symptoms have continued since that time.  Moreover, the Board finds the Veteran to be credible in that respect.

As tinnitus, a chronic disease, was present during service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted.  See 38 C.F.R. �� 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board recognizes that in April 2015 a VA examiner opined that the Veteran s tinnitus was less likely than not due to in-service noise exposure as the examiner believed that the Veteran s tinnitus was related to his bilateral hearing loss and the examiner opined that bilateral hearing loss was not related to service.  The opinion does not negate the fact that a chronic disability actually onset during service as shown by the Veteran s competent and credible statements.

For the above reasons, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for tinnitus is warranted.  38 U.S.C. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

The Board finds that additional development is required before the remaining claims on appeal are decided.

Bilateral Hearing Loss

In August 2015, the Veteran was afforded a VA audiological examination and the examiner diagnosed bilateral sensorineural hearing loss.  The examiner opined that the Veteran s bilateral hearing loss was less likely than not caused by in-service noise exposure.  In reaching this conclusion, the examiner noted that the Veteran had normal hearing thresholds at separation from service.  The examiner, however, did not address the possibility of delayed onset of hearing loss.

In that regard, the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. � 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service as opposed to intercurrent causes.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Given the above, an additional medical opinion is necessary.

Acquired Psychiatric Disorder

At a July 2015 VA examination, the examiner diagnosed adjustment disorder with anxiety/depression.  While the examiner did not diagnose PTSD, anxiety disorder, persistent depressive disorder, or dysthymic disorder, subsequent treatment records show diagnoses for each.  Therefore, additional examination is necessary to determine the proper mental health diagnoses and any relationship to service.

Lower Back and Sciatic Nerve

The Veteran asserts that he has a lower back disability that is related to his period of active service.  At his December 2019 hearing before the Board, the Veteran testified that his current back disability may be related to climbing up and down poles and slipping while on the poles during his work as a telephone cable specialist.  Post-service treatment records show multiple reports of lower back pain.  To date, no VA medical opinions have been obtained with regard to the Veteran s claimed lower back disability.  The Veteran asserts his sciatic nerve issues are a result of his back disability.  Therefore, the Board finds that the Veteran should be afforded a VA examination to address the nature and etiology of the Veteran s lower back disability and sciatic nerve disability.

The matters are REMANDED for the following:

1. Ask the Veteran to identify all outstanding treatment records relevant to his bilateral hearing loss, acquired psychiatric disorder, lower back, and sciatic nerve claims, to include when and where he was seen by VA in the 1980s.  All identified VA records should be added to the claims file.  All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran.  If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. � 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records.

2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current hearing loss disability is related to an in-service injury, event, or disease to include exposure to noise from gunfire.

The examiner should explain why the Veteran s current bilateral hearing loss is or is not merely a delayed response to in-service noise exposure.  The examiner should explain the reasoning for any opinion provided, to include the medical significance of any findings, as the Board is precluded from making medical findings.

The need for an examination is left to the discretion of the examiner

3. Schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorder is related to an in-service injury, event, or disease.

If PTSD, or a trauma- or stressor-related disorder is diagnosed, the examiner should list all traumatic events contributing to that diagnosis.

The examiner should specifically address whether the Veteran has PTSD, anxiety disorder, persistent depressive disorder, and dysthymic disorder, as a result of his military service.

The examiner should elicit a full history from the Veteran and consider the lay statements of record.  The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation.

A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings.

4. The Veteran should be afforded a VA examination to address the nature of his claimed lower back disability.

The examiner should elicit a full history from the Veteran and consider the lay statements of record.  The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation.

Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current lower back disability is related to an in-service injury, event, or disease, to include the Veteran s report that he injured his back while working on electrical wires.

A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings.

Nathan Kroes

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Christopher O'Donnell

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.


text:
��Citation Nr: 20026000

Decision Date: 04/15/20	Archive Date: 04/15/20

DOCKET NO. 20-10 236

DATE: April 15, 2020

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for a left shoulder condition is remanded.

Entitlement to service connection for a right shoulder condition is remanded.

Entitlement to service connection for a lumbar spine condition is remanded.

FINDING OF FACT

The Veteran s bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within one year of service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the Air Force from December 1963 to June 1964 as well as periods of active duty for training as a member of the Air Force Reserve.

1. Entitlement to service connection for bilateral hearing loss

The Veteran asserts that his diagnosed bilateral sensorineural hearing loss was caused by in-service exposure to hazardous levels of noise while working on an Air Force flight line.

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease.  38 U.S.C. �� 1101, 1112, 1113, 1137; 38 C.F.R. �� 3.303, 3.307, 3.309.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

The Veteran has a current diagnosis of bilateral sensorineural hearing loss as evidenced by a January 2017 audiological evaluation and confirmed by a VA examiner in February 2018.  Sensorineural hearing loss is an organic disease of the nervous system which is an enumerated category of conditions under 38 C.F.R. � 3.309(a); Walker, 708 F.3d 1331.

However, the disability was not shown as chronic in service, did not manifest to a compensable degree within the one-year presumptive period, and was not noted in service with attributable continuity of symptomatology.  The Veteran s service treatment records show hearing within normal limits at both enlistment and separation.  While the Veteran served periods of active duty for training until he his discharge from the Air Force Reserves in October 1969, periodic medical exams show no evidence of hearing loss and the Veteran did not complain of any hearing related symptoms.  Post-service treatment records show the Veteran was not diagnosed with hearing loss in either ear until January 2017, decades after his separation from service and decades outside of the applicable presumptive period.   Furthermore, while the Veteran is competent to report having experienced symptoms of difficulty hearing, he has not claimed his hearing loss symptoms began during service or within the one-year presumptive period after separation.  Because the preponderance of the evidence, including the Veteran s medical records and his own description of his onset of symptoms, do not show that the Veteran s hearing loss was noted as chronic is service; manifested to a compensable level during service or the one year presumptive period after service; or were ever noted in service, service connection on a presumptive basis for this chronic condition is not warranted.

Service connection for hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran s hearing loss and an in-service injury, event or disease.  38 U.S.C. �� 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303.

As noted above, the Veteran has a currently diagnosed condition of bilateral hearing loss.  Because of the Veteran s military occupational specialty of fuel specialist, his exposure to hazardous noise levels is conceded.

VA provided an examination of February 2018 to determine the nature and etiology of the Veteran s hearing loss.  The examiner examined the Veteran and his medical records, confirmed his diagnosis of bilateral sensorineural hearing loss, and opined that the condition is less likely than not related to in-service noise exposure.  In support of this opinion the examiner cited research by the American College of Occupational Medicine Noise and Hearing Conservation Committee which showed that  a noise induced hearing loss will not progress once it is stopped.   Because the Veteran s hearing was normal in service, at separation, and for decades after his last in-service exposure to hazardous noise levels, the examiner opined that no in-service injury, including noise exposure, was the cause of his current hearing loss.

However, the Veteran is not competent to provide a diagnosis in this case or determine that his symptoms are the result of his in-service noise exposure.  The Veteran has not demonstrated the necessary medical expertise.  The issue is medically complex, as it requires.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

While the Veteran believes that his currently diagnosed hearing loss is related to an in-service injury, event, or disease, including the hazardous noise he was exposed to while serving on a flight line, he is not competent to provide a nexus opinion in this case.  This issue is also medically complex, as it requires [optional   include if they fit the facts of your case: specialized medical education regarding knowledge of the likelihood of delayed onset of hearing loss well after the end of exposure to noise.  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.

Because the balance of the evidence does not show a nexus between the Veteran s hearing loss and any in-service injury, event, or disease, service connection on a direct basis is not warranted.

REASONS FOR REMAND

1. Entitlement to service connection for a left shoulder condition is remanded.

The Board cannot make a fully-informed decision on the issue of service connection for a left shoulder condition because no VA examiner has opined whether the Veteran has a left shoulder condition which is related to his active service.

2. Entitlement to service connection for a right shoulder condition is remanded.

The Board cannot make a fully-informed decision on the issue of service connection for a right shoulder condition because no VA examiner has opined whether the Veteran has a right shoulder condition which is related to his active service.

3. Entitlement to service connection for a lumbar spine condition is remanded.

The Board cannot make a fully-informed decision on the issue of service connection for a lumbar spine condition because no VA examiner has opined whether the Veteran has a lumbar spine condition which is related to his active service.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any shoulder condition.  For each diagnosed condition the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including heavy lifting or falls during service.

If the examiner diagnoses arthritis they must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.

While the Veteran is not competent to diagnose his own condition, he is competent to describe his own symptoms and the examiner must discuss the Veteran s lay statements regarding the timing and circumstances of his onset of symptoms.

A separate opinion should be provided for each shoulder.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine condition.  For each diagnosed condition the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including heavy lifting or falls during service.

If the examiner diagnoses arthritis they must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.

While the Veteran is not competent to diagnose his own condition, he is competent to describe his own symptoms and the examiner must discuss the Veteran s lay statements regarding the timing and circumstances of his onset of symptoms.

3. Readjudicate the Veteran s claims.

L. M. BARNARD

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	M. Zimmerman

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.


judge_norm: J W FRANCIS

text:
��Citation Nr: 20027000

Decision Date: 04/18/20	Archive Date: 04/18/20

DOCKET NO. 17-30 285

DATE: April 18, 2020

REMANDED

Entitlement to service connection for a right shoulder disability is remanded.

Entitlement to service connection for a low back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Army from April 1976 to November 1986.

The Veteran testified before the undersigned Veterans Law Judge at a February 2020 video conference hearing. A transcript of the hearing has been associated with the claims file.

1. Service connection for a right shoulder disability.

2. Service connection for a low back disability.

The Veteran contends that service connection is warranted for a right shoulder and low back disability caused by in-service injuries. Further, the Veteran contends that his ongoing symptomology of low back pain and right shoulder pain began in-service and has continued since worsening over time.

First, evidence indicates that there may be outstanding relevant VA treatment records. During the February 2020 hearing, the Veteran reported that he has continued to undergo treatment at a VA Medical Center for the disabilities on appeal. Specifically, the Veteran testified to recent ongoing treatment in February 2020 at VA.  Any VA treatment records are within VA s constructive possession and are considered potentially relevant to the issues on appeal.  A remand is required to allow VA to obtain them.

Next, in February 2020 the Veteran testified to being involved in 2 motor vehicle accidents in-service while driving government issued vehicles transporting troops. The Veteran contends that these motor vehicle accidents resulted in his ongoing low back pain and symptomology. He testified these accidents occurred in March 1986 and August/September 1986 while stationed at an Army Recruiting Battalion in Beckley, West Virginia. However, the service personnel records show that the Veteran was an Army recruiter in Beckley in 1985 and transferred to an infantry unit at Fort Drum, New York in November 1985 and served there until November 1986.

February 2020 hearing testimony indicates that there may be outstanding and relevant accident reports and records. A remand is required to allow VA to request these outstanding records.

Lastly, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for a right shoulder disability and low back disability because no VA examiner has opined as to direct and presumptive service connection. As such a remand is warranted for VA examinations.

The matters are REMANDED for the following action:

1. Obtain the Veteran s VA treatment records for the period from April 2019 forward.

2. Request from the Veteran clarification of the dates and locations of the reported motor vehicle accidents including the jurisdiction where police or Army accident reports may be on file.

3. Obtain the Veteran s outstanding accident reports and other relevant documents relating to the reported March 1986 and August/September 1986 (including as may have been in March and August/September 1985) motor vehicle accidents while driving government owned vehicles in Beckley, West Virginia. Contact the National Personnel Records Center (NPRC) and the Joint Services Records Research Center Division (JSRRC) or other appropriate government agencies to obtain these outstanding records. The AOJ must document their efforts to obtain the accident reports. If the accident reports are unavailable and further attempts to obtain a copy of that accident reports are deemed to be futile, a memorandum of unavailability should be associated with the claims file.

4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder and low back disabilities.  The examiner must opine whether:

Right shoulder

(a.) Identify any right shoulder disabilities.

(b.) Is it at least as likely as not (aa 50 percent probability ot greater) that the Veteran s current right shoulder disability is caused by an in-service injury, event, or disease?

(c.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran s right shoulder arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service?

Low back

(d.) Identify any low back disabilities.

(e.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran s current low back disability is caused by an in-service injury, event, or disease?

(f.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran s low back arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service?

Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Service treatment records in March 1986 note low back pain for the past week. Examination noted tenderness in L5 region and diagnosed a back strain, and the Veteran was directed to use heat, Motrin and not to lift anything over 15 pounds for 10 days. In addition, attention is invited to the Veteran s February 2020 hearing testimony noting he injured his right shoulder and low back in-service while stationed in Germany when he fell from a tree and has experienced ongoing low back and right shoulder symptomology since.

 Further, the Veteran testified to being involved in two motor vehicle accidents in-service in Beckley West Virginia which resulted in his ongoing low back symptomology and increased pain.

J.W. FRANCIS

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	K. Kardian, 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.


judge_norm: EVAN M DEICHERT

text:
��Citation Nr: 20028000

Decision Date: 04/21/20	Archive Date: 04/21/20

DOCKET NO. 15-28 698

DATE: April 21, 2020

ORDER

Entitlement to service connection for unspecified depressive disorder, secondary to a service-connected disorder, is granted.

Entitlement to service connection for headaches, secondary to service-connected tinnitus, is granted.

Entitlement to service connection for chronic prostatitis is granted.

Entitlement to an initial rating higher than 10 percent for tinnitus is denied.

Entitlement to a compensable initial rating for right testicle atrophy is denied.

Entitlement to an effective date earlier than July 31, 2012, for the grant of service connection for right testicle atrophy is denied.

Entitlement to an effective date earlier than October 25, 2013, for the grant of service connection for tinnitus is denied.

FINDINGS OF FACT

1. The evidence is at least in equipoise with regard to showing that the Veteran had unspecified depressive disorder secondary to a service-connected disorder.

2. The evidence is at least in equipoise with regard to showing that the Veteran had headaches secondary to service-connected tinnitus.

3. Resolving all reasonable doubt in favor of the Veteran, chronic prostatitis was incurred during service.

4. The Veteran s tinnitus rated at 10 percent is the maximum schedular rating for that disability.

5. The Veteran s right testicle disability was not manifested by complete atrophy of both testicles.

6. The Veteran s claim for service connection for right testicle atrophy was not received before July 31, 2012.

7. The Veteran s claim for service connection for tinnitus was not received before October 25, 2013.

CONCLUSIONS OF LAW

1. The criteria for service connection for unspecified depressive disorder, secondary to a service-connected disability, are met. 38 U.S.C. � 5107; 38 C.F.R. � 3.310.

2. The criteria for service connection for headaches, secondary to a service-connected tinnitus, are met. 38 U.S.C. � 5107; 38 C.F.R. � 3.310.

3. The criteria for service connection for chronic prostatitis have been met.  38 U.S.C. � 5107; 38 C.F.R. � 3.303.

4. The criteria for an initial rating higher than 10 percent for tinnitus have not been met.  38 U.S.C. � 5107; 38 C.F.R. � 4.87, Diagnostic Code 6260.

5. The criteria for a compensable initial rating for right testicle atrophy have not been met.  38 U.S.C. � 5107; 38 C.F.R. � 4.115b, Diagnostic Code 7523.

6. An effective date earlier than July 31, 2012, for the grant of service connection for right testicle atrophy is not warranted.  38 U.S.C. � 5107; 38 C.F.R. � 3.400.

7. An effective date earlier than October 25, 2013, for the grant of service connection for tinnitus is not warranted.  38 U.S.C. � 5107; 38 C.F.R. � 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service with the United States Army from September 1976 to September 1980.  Upon his death in July 2018, the Veteran s appeal was dismissed by the Board in August 2018.  The Veteran s surviving spouse has since been substituted as the Appellant for the purposes of claims pending before VA at the time of the Veteran s death.

These claims come before the Board of Veterans  Appeals (Board) on appeal of July 2013 and June 2014 rating decisions.

In May 2016, the Appellant s attorney submitted additional evidence along with a waiver of initial RO review of the evidence.

Service Connection

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a).

A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury.  38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.310(a), (b).

1. Entitlement to service connection for headaches

On VA audiological examination in April 2014, the Veteran reported that he experienced occasional headaches and nausea associated with his service-connected tinnitus.

Of record is a March 2016 Disability Benefits Questionnaire (DBQ) report conducted by Dr. H.S. who concluded that the Veteran s headaches were caused by his service-connected tinnitus.  Dr. H. S. stated that it is known that damage to the auditory system resulting in tinnitus can cause headaches.  He referenced medical literature in support of his opinion.  Accordingly, service connection for headaches is granted.

2. Entitlement to service connection for unspecified depressive disorder

Prior to the Veteran s death, service connection was in effect for tinnitus, atrophy of the right testicle and facial scar below the lower lip.  As noted above, the Board has granted service connection for headaches.

Following an April 2016 DBQ report, Dr. H. H-G. provided a supplemental medical opinion.  Dr. H. H.-G. concluded that the Veteran suffered from an unspecified depressive disorder that  more likely than not began in military service, continues uninterrupted to the present and is aggravated by his tinnitus, atrophy right testicle, fascial scar below lower lip and headaches.  Dr. H. H.-G. cited to medical literature in support of her opinion.  Accordingly, service connection for depressive disorder is granted.

3. Entitlement to service connection for chronic prostatitis

The service treatment records show that the Veteran was seen on several occasions in 1978 for diagnosis and treatment of epididymitis/orchitis.  In an October 1978 treatment record, the examiner noted that the Veteran probably had chronic prostatitis.

A November 2012 VA examination report showed that examination of the prostate was abnormal.  The Veteran was diagnosed as having chronic prostatitis.

On VA examination in July 2013, the Veteran reported having prostatitis, however, he did not want his prostate examined.  The examiner opined that it was at least as likely as not that the chronic prostatitis diagnosed in service in 1978 was caused by the acute episode for epididymitis, also in 1978.

In light of the totality of the circumstances, and after resolving all reasonable doubt in the Appellant s favor, the evidence of record supports a finding that is at least as likely as not that the Veteran s chronic prostatitis was incurred during active duty service.  Service connection for chronic prostatitis is granted.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries.  38 U.S.C. � 1155; 38 C.F.R. � 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. � 4.7.

4. Entitlement to a rating higher than 10 percent for tinnitus

The Veteran s tinnitus was rated 10 percent under Diagnostic Code 6260.  38 C.F.R. � 4.87.  Pursuant to Diagnostic Code 6260, a 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  The maximum schedular rating available for tinnitus is 10 percent.  38 U.S.C. � 1155; 38 C.F.R. � 4.87.  As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

5. Entitlement to a compensable rating for right testicle atrophy

The Veteran s right testicle atrophy was rated as noncompensable under Diagnostic Code 7523, 38 C.F.R. � 4.115b.  Diagnostic Code 7523 assigns a non-compensable rating for complete atrophy of a single testicle.  Assignment of a 20 percent rating is warranted for complete atrophy of both testicles.

The Board finds that the criteria for the next higher rating under Diagnostic Code 7523 have not been met. Under Diagnostic Code 7523, a compensable rating is only available for complete atrophy of both testicles. The evidence of record, including VA examinations in November 2012 and July 2013 note only atrophy of the right testicle.  At no point during the appeal period does the medical evidence of record reflect that the Veteran had complete atrophy of both testicles.  Accordingly, the Board finds that the evidence does not support a compensable rating for right testicle atrophy.  The claim is denied.

Earlier Effective Date

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. � 5110; 38 C.F.R. � 3.400. After a final disallowance of a claim, the effective is the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C. � 5110(a); 38 C.F.R. � 3.400(q)(2).

6. Entitlement to an effective date earlier than July 31, 2012 for the grant of service connection for right testicle atrophy

The Veteran s informal claim for service connection for right testicle atrophy was received on July 31, 2012.  Service connection for right testicle atrophy was granted in a July 2013 rating decision, effective July 31, 2012, the date of receipt of the informal claim.

The Board finds there is no document of record that can be construed as a formal or informal claim for entitlement to service connection for right testicle atrophy received prior to July 31, 2012.  Moreover, the Veteran had not asserted that he filed a formal or informal claim prior to that date.  Based on this record, an effective date prior to July 31, 2012, cannot be assigned for the award of service connection for right testicle atrophy. Therefore, the claim is denied.

7. Entitlement to an effective earlier than October 25, 2013, for the grant of service connection for tinnitus

The Veteran s claim for service connection for tinnitus was received on October 25, 2013.  Service connection for tinnitus was granted in a June 2014 rating decision, effective October 25, 2013, the date of receipt of the claim.

There is no document of record that can be construed as a formal or informal claim for entitlement to service connection for tinnitus received prior to October 25, 2013.  Moreover, the Veteran had not asserted that he filed a formal or informal claim prior to that date.  Accordingly, an effective date prior to October 25, 2013, cannot be assigned for the award of service connection for tinnitus and the claim is denied.

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Notably, for these final four claims, the appellant s attorney (who similarly represented the Veteran during his lifetime) submitted no evidence or argument in support of these claims during the Veteran s lifetime or in response to the appellant s substitution and recertification of these appeals.

Evan M. Deichert

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	J. Henriquez, 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.