Citation Nr: 1736649	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  08-09 596	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1. Entitlement to an initial compensable rating for a status post basal skull fracture. 

2. Entitlement to service connection for a heart disorder, to include due to herbicide exposure. 

3. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

S. An, Associate Counsel



INTRODUCTION

The Veteran had active duty service from April 1968 to March 1971, to include service in the Republic of Vietnam from February 1970 to March 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2006, March 2007, and August 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

This case was previously before the Board in February 2016 where it was remanded for additional evidentiary development.  

Thereafter, in a May 2016 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable evaluation; granted service connection for facial scars (claimed as skin condition) and assigned an evaluation of 30 percent disabling; and granted service connection for painful scars and assigned an evaluation of 10 percent disabling, effective August 5, 2005.  The Board finds the RO's decision granting service connection for the above listed disabilities represents a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  Thus, those issues are no longer in appellate status.

In March 2017, and after accomplishing further action, the RO issued a supplemental statement of the case (SSOC) reflecting the continued denial of claims for compensable rating for a status post basal skull fracture, service connection for tinnitus, and service connection for a heart condition.  The matters have returned to the Board for appellate consideration. 

The Board notes that additional evidence, to include private treatment records dated through July 2017, has been added to the record since the issuance of the SSOC.  The Veteran's representative waived initial agency of original jurisdiction (AOJ) consideration of this evidence in an August 2017 Informal Hearing Presentation (IHP).  See 38 C.F.R. § 20.1304(c) (2016).  The Board may therefore properly consider such evidence.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.


FINDINGS OF FACT

1.  The Veteran service-connected status post basal skull fracture is not manifested by skull loss without brain hernia.

2.  The Veteran does not have a heart disorder. 

3.  The Veteran does not have tinnitus. 


CONCLUSIONS OF LAW

1.  The criteria for a compensable evaluation for status post basal skull fracture have not been met.  38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 5296 (2016).

2. The criteria for service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016).

3. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has certain notice and assistance duties.  See 38 U.S.C.A. §§5103, 5103A (West 2014); 38 C.F.R. §§3.159 (2016).  VA's duty to notify was satisfied by letter issued in September 2005, and the record reflects that VA has fulfilled its duty to assist the Veteran.  

Further, the Board finds that the RO substantially complied with the February 2016 remand directives and no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998).

II. Initial Rating 

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied.  Fenderson v. West, 12 Vet. App. 119   (1999). 


Basal Skull Fracture 

In an August 2006 rating decision, the RO granted service connection for basal skull fracture and assigned a noncompensable evaluation effective March 8, 2000, the date of the claim.  The Veteran disagrees with the assigned evaluation and is seeking an initial compensable rating for his service-connected disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5296. 38 C.F.R. §§ 4.20, 4.27 (2016).

Under Diagnostic Code 5296, the loss of part of both the inner and outer tables of the skull without brain hernia warrants a 10 percent rating if the size of the area lost is smaller than the size of a 25-cent piece, or 0.716 square inches (4.619 square centimeters).  A 30 percent rating is warranted if the size of the area lost is intermediate without brain hernia.  A 50 percent rating is warranted if the size of the area lost is larger than a 50-cent piece, or 1.140 square inches (7.355 square centimeters), without brain hernia.  An 80 percent rating is warranted for loss of part of the skull with brain hernia.  Intracranial complications are to be evaluated separately. 38 C.F.R. § 4.71a, Diagnostic Code 5296.

In May 2016, the Veteran was afforded a VA examination to determine the current severity of his service-connected status post basal skull fracture.  During the clinical interview, the Veteran reported being exposed to an explosion in Vietnam which caused his skull fracture.  However, the record shows that at a March 2001 neurological examination, the Veteran previously reported that he injured his head in service while playing basketball when the backboard fell on his head.  After a physical examination and review of pertinent medical records, the May 2016 examiner found no current symptoms or any mental, physical or neurological conditions or residuals attributable to a traumatic brain injury (TBI) other than scars.  The examiner determined that, as of the date of the examination, there was no current symptom attributable to TBI or residuals thereof. See May 2016 Residuals of TBI Disability Benefits Questionnaire (DBQ).  

In January 2017, the same examiner who conducted the 2016 examination provided an addendum opinion finding no evidence of brain hernia and no intracranial abnormality.  In his rationale, the examiner noted that a 2014 CT scan of the head and neck revealed no finding of brain hernia.  He further explained that service treatment records were negative of brain hernia and concluded no prior existence of a brain hernia was found.  As no diagnosis of brain hernia was rendered, the examiner stated there were no dimensions of a brain hernia.  Referencing a June 2008 MRI of the brain revealing no evidence of acute intracranial abnormality, the 2016 examiner also found no intracranial complications of a brain hernia. See January 2017 Addendum Medical Opinion.

Based on the evidence of record, the Board finds that the Veteran's status post, basal skull fracture does not more nearly approximate a compensable disability rating under Diagnostic Code 5296.  The evidence does not reflect skull loss of any part of the inner and outer tables as required.  As demonstrated by the 2016 VA examination report and 2017 addendum opinion, there is simply no evidence of skull loss or residuals attributable to the head injury.  Also, the record is absent for evidence of a brain hernia or intracranial complications.  As none of the medical evidence of record contains any objective findings of skull loss without brain hernia, a higher rating is not supported.  Therefore, the Veteran's post status, basal skull fracture is appropriately rated as noncompensable.  

For these reasons, the criteria for a compensable rating under Diagnostic Code 5296 have not been met or approximated, and an increased rating under this code is not warranted for the entire appeal period.

III. Service Connection

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §3.303.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014).  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Under 38 C.F.R. § 3.303(b), where the veteran asserts entitlement to service connection for a chronic condition, such as ischemic heart disease, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).

Service connection may also be granted on a presumptive basis for certain chronic disabilities, including ischemic heart disease, when manifested to a compensable degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016).

For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. §1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e).  Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id.  

The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a).  Ischemic heart disease is included in this list. 38 C.F.R. § 3.309(e).  Notably, VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586  -57589 (1996).

Heart disorder

The Board initially acknowledges that the Veteran had verified in-country service in the Republic of Vietnam from February 1970 to March 1971.  Accordingly, exposure to herbicides is presumed for purposes of this review. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  

With that said, however, the Board finds that the record is absent for a current disability for which entitlement for service connection can be established.

In regards to the claim of entitlement for service connection of a heart disorder, the Veteran was provided a VA clinical examination in May 2016.  The examiner did not diagnose a heart disorder or heart disease.  Specifically, the examination failed to reveal objective indications of any underlying disability such as ischemic heart disease (IHD) or coronary artery disease (CAD) or any other heart condition like arrhythmia.  The examiner noted the Veteran's report of "sharp chest pains that occur spontaneously" but concluded such symptoms were not attributable to heart disease.  Further, during the clinical interview, the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. See May 2016 VA examination report.  

The Board must point out that the Veteran's report of physical symptoms claimed as "heart races" are not competent medical evidence.  As a lay person, the Veteran lacks the capability to provide evidence that requires specialized knowledge, skill, experience, training or education.  If the determinative issue involves medical opinion or a medical diagnosis, competent medical evidence is required.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In the instant case, the Veteran has not provided such competent medical evidence.  Therefore, his assertions, standing alone, have little probative value and the Board will give more weight to the medical opinion provided by VA examiners.  

Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this case, there is no evidence of a heart condition or a diagnosis of the claimed condition during the pendency of this appeal.  For these reasons, the Board finds that the evidence weighs against a finding that the Veteran suffers a current heart disability.  

Accordingly, service connection cannot be established and the claim must be denied.   
 
Tinnitus 

The Veteran filed his service connection claim for tinnitus in August 2005, which was denied by the August 2006 rating decision.  The Veteran generally contends that he suffers from hearing loss as a result of noise exposure during service. See IHPs submitted August 2017 and December 2015.  

The Veteran's in-service noise exposure is consistent with his military occupational specialty as field artillery repairman, and therefore acknowledged.   However, for service connection to be warranted, it must be shown that such military noise exposure actually caused tinnitus.

Service treatment records are negative for complaints, treatments, or diagnoses related to tinnitus.  Likewise, post-service treatment records are absent for treatment for tinnitus.  In fact, in his application for benefits, the Veteran stated he "never received medical treatment" for tinnitus.

The Veteran was afforded a VA examination in May 2016.  The examiner noted that the Veteran did not report recurrent tinnitus.  There was no response provided by the examiner as to the etiology of tinnitus because no tinnitus was reported during examination. See May 2016 Hearing Loss and Tinnitus DBQ.

The Board finds that the evidence weighs against a finding of a current tinnitus disability.  There is no evidence of tinnitus during the pendency of this appeal and in fact, on VA examination in 2016 and in relation to treatment, the Veteran denied tinnitus.  For these reasons, the Board finds that the evidence weighs against a finding that the Veteran suffers a current tinnitus disability.

In the absence of evidence establishing a current diagnosis of tinnitus, service connection cannot be established. Brammer, 3 Vet. App. at 225.  Service connection must therefore be denied.  


ORDER

An initial compensable rating for a status-post basal skull fracture is denied.

Entitlement to service connection for a heart disorder is denied.

Entitlement to service connection for tinnitus is denied.



____________________________________________
Thomas H. O'Shay
 Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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