Citation Nr: 1829771	
Decision Date: 08/01/18    Archive Date: 08/17/18

DOCKET NO.  13-04 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus.

2.  Entitlement to service connection for liver disease.

3.  Entitlement to service connection for bilateral carpal tunnel syndrome.

4.  Entitlement to service connection for sinus disability.

5.  Entitlement to service connection for bilateral flat feet.

6.  Entitlement to service connection for right elbow disability.

7.  Entitlement to service connection for left elbow disability.

8.  Entitlement to service connection for a bilateral hip disability.

9.  Entitlement to service connection for cervical spine disability.

10.  Entitlement to service connection for sleep apnea.

11.  Entitlement to service connection for gastroesophageal reflux disease (GERD).

12.   Entitlement to a disability rating in excess of 10 percent for tinnitus.

13.  Entitlement to a compensable disability rating for bilateral hearing loss.

14.  Entitlement to a rating in excess of 10 percent for right thigh meralgia paresthetica.  

15.  Entitlement to a rating in excess of 10 percent for left thigh meralgia paresthetica.  

16.  Entitlement to an initial compensable disability rating for tension headaches.

17.  Entitlement to an initial compensable disability rating for erectile dysfunction, to include special monthly compensation (SMC) for loss of use of a creative organ.  

18.  Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

19.  Entitlement to a disability rating in excess of 10 percent for lumbar strain with arthritis.

20.  Entitlement to a disability rating in excess of 20 percent for right shoulder acromioclavicular joint separation.

21.  Entitlement to a disability rating in excess of 10 percent for residuals of a right knee torn medial meniscus, status post partial medial meniscectomy.

22.  Entitlement to a rating in excess of 10 percent for residuals of left tibia/fibula fracture with knee impairment.

(The issue of whether the termination of Department of Veterans Affairs (VA) compensation benefits from February 22, 2010 to January 21, 2015, due to active duty during the same period was proper is the subject of a separate Board decision.) 


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

C. Lawson, Counsel


INTRODUCTION

The Veteran served on active duty from October 1976 to October 1982, September 1987 to September 1992, March to December 1999, and February 22, 2010 to January 21, 2015.

These matters come to the Board of Veterans' Appeals (Board) on appeal from June 2006, November 2008, January 2010, and February 2015 VARO rating decisions.

Matters were remanded in October 2015 for further development.

A claim for service connection for bilateral carpal tunnel syndrome was denied by the Board in December 1998.  That Board decision is final.  38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2017).  Claims for service connection were denied by the RO, in October 2002 for liver disease, and in June 2006 for diabetes mellitus and cervical spine disability.  The Veteran did not appeal those decisions or submit new and material evidence within 1 year of the dates he was notified of them.  Accordingly, they too are final.  38 U.S.C.A. § 7105 (West 2014) 38 C.F.R. § 20.1102 (2017).  Since those decisions, there has been an additional period of service from February 2010 to January 2015.  Accordingly, the current claims for these disabilities will be treated as new claims, rather than claims to reopen.  

Appeals for higher ratings for left shoulder disability, a total disability rating for compensation based upon individual unemployability (TDIU), and the matter of whether VA properly withheld disability compensation benefits based on drill or reserve pay status for fiscal year 2015 have not yet been certified to the Board for review by the agency of original jurisdiction.  They will be addressed in a later Board decision.  

The issues of higher ratings for PTSD, lumbar strain with arthritis, right shoulder disability, and right and left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's diabetes mellitus became worse during his February 2010 to January 2015 period of service.  

2.  The Veteran does not have a current liver disability.

3.  The Veteran's bilateral carpal tunnel syndrome was not manifest during service prior to March 1999 or to a degree of 10 percent within 1 year of his September 1992 separation.  It clearly and unmistakably existed prior to his March to December 1999 and his February 2010 to January 2015 (last) period of service and did not increase in severity during such service.  

4.  The Veteran does not have a current sinus disability.  

5.  The Veteran's current bilateral flatfoot disability was manifest during his last period of service.   

6.  Right elbow arthritis was manifest during the Veteran's February 2010 to January 2015 period of service. 
 
7.  Left elbow arthritis was manifest within 1 year of the Veteran's separation from his February 2010 to January 2015 period of service.   

8.  The Veteran does not have a current disability of either hip. 

9.  The Veteran's current cervical spine disability appears to have chronically increased in severity due to his February 2010 to January 2015 period of service.  

10.  The first diagnosis of record for the Veteran's sleep apnea was during his February 2010 to January 2015 period of service. 

11.  The Veteran's GERD was not manifest in and is unrelated to his periods of service prior to February 2010, clearly and unmistakably existed prior to his February 2010 to January 2015 period of service, and did not increase in severity during such service.  

12.  The Veteran's tinnitus is currently rated at the maximum 10 percent rating authorized under 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017).  

13.  The Veteran's bilateral hearing loss disability warrants no more than a Roman number I for each ear.

14.  The Veteran's right and left thigh meralgia paresthetica are each assigned the maximum schedular rating of 10 percent authorized under 38 C.F.R. § 4.124a, Diagnostic Code 8529 (2017).  

15.  The Veteran's tension headaches do not cause characteristic prostrating attacks averaging one in 2 months over the last several months.   

16.  The Veteran does not have penile deformity, with loss of erectile power, nor does he have loss of use of a creative organ.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for diabetes mellitus are met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.306 (2017).

2.  The criteria for service connection for liver disease are not met.  38 U.S.C.A.  §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).

3.  The criteria for service connection for bilateral carpal tunnel syndrome are not met.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).

4.  The criteria for service connection for sinus disability are not met.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).

5.  The criteria for service connection for bilateral flat feet are met.  38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (2017).

6.  The criteria for service connection for right elbow arthritis are met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017).

7.  The criteria for service connection for left elbow arthritis are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

8.  The criteria for service connection for bilateral hip disability are not met.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).

9.  The criteria for service connection for cervical spine disability are met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.306 (2017).

10.  The criteria for service connection for sleep apnea are met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017).

11.  The criteria for service connection for GERD are not met.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).

12.  A schedular evaluation in excess of 10 percent for tinnitus is not permitted.  38 U.S.C.A. §1155 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed Cir. 2006).

13.  The criteria for a compensable rating for bilateral hearing loss disability are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R.  §§ 4.85, 4.86, and Diagnostic Code 6100 (2017).

14.  A schedular evaluation in excess of 10 percent for right thigh meralgia paresthetica is not permitted.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.124a, Diagnostic Code 8520 (2017).

15.  The criteria for a disability rating in excess of 10 percent for left thigh meralgia paresthetica are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.124a, Diagnostic Code 8520 (2017).

16.  The criteria for a compensable rating for tension headaches are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, Part 4, 4.31, 4.115b, Diagnostic Code 7599-7522 (2017).

17.  The criteria for a compensable rating for erectile dysfunction and special monthly compensation for loss of use of a creative organ are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, Part 4, 4.31, 4.115b, Diagnostic Code 7599-7522 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board notes that it might be that not all of the Veteran's service records are available, despite exhaustive efforts to obtain them.  The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The following analysis has been undertaken with this heightened duty in mind.  

Service connection criteria

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Under 38 U.S.C.A. § 1153, a preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  

Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestation of the disability prior to, during and subsequent to service.  Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded to combat duty and other hardships of service.  38 C.F.R. § 3.306.  

Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013).  Arthritis and organic disease of the nervous system are listed as chronic disease.  Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b).

Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder.  38 C.F.R. § 3.310.  Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected.  Allen v. Brown, 7 Vet. App. 439 (1995).  In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury.  38 C.F.R. § 3.310.  

Diabetes mellitus

This claim was filed in May 2008.  

A February 2002 private medical record reports that the Veteran was diagnosed with diabetes in July 2001.  The Board finds the February 2002 private medical record to be the most probative evidence as to the first diagnosis of diabetes.  The Veteran reported in November 2005 that diabetes first surfaced after his return from Bosnia, and his October 2006 statement that he diagnosed with diabetes immediately following deployment to Bosnia in 1999.  A November 2016 medical record reports that the Veteran was diagnosed with diabetes in 2000.  The Board finds these reports that diabetes was first diagnosed within a year of the Veteran's 1999 service less probative as they were made a number of years after February 2002 private medical record, so they are less contemporaneous.  

To the extent that the Veteran's statements in 2005 and 2006 and a medical record in 2016 reflect his report that his diabetes began within a year of his period of service in 1999, his statements are inconsistent with the more contemporaneous evidence of record in 2002, prepared only months after diabetes was reportedly first diagnosed in 2001.  The Board finds that any such statements indicating diabetes was diagnosed within a year of his 1999 service are less than credible. In making such a credibility finding, the Board has considered that the Veteran may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred over several decades.  Further, there is no evidence that reflect that diabetes was manifest to a compensable degree within a year of service prior to 2010.

As the preponderance of the evidence indicates that the Veteran's diabetes mellitus was not manifest in any of his periods of service ending in or prior to December 1999, or within 1 year thereafter, service connection on a direct or presumptive incurrence basis is not warranted.  The question then becomes whether the Veteran's diabetes mellitus was aggravated (chronically increased in severity) by subsequent service.  In November 2005, the Veteran stated that as a consequence of dietary issues associated with his diabetes mellitus, he was no longer considered deployable worldwide.   
 
April and May 2010 service treatment records show that the Veteran's diabetes mellitus was non-insulin dependent.  He was on Glucophage for diabetes mellitus.  A September 2010 service treatment record notes that the Veteran's diabetes mellitus was uncomplicated and controlled, although his HA1c was high at 8.4.  In service in October 2010, it was reported that the Veteran was scheduled to deploy but was returned to Leavenworth to attempt better control of his diabetes mellitus.  In May and June 2011, the Veteran's diabetes mellitus was suboptimally controlled.  He had gained 25 pounds in the past year and was not eating well.  He was advised to lose weight to help obtain good glucose control.  A September 2011 service treatment record shows that the Veteran's diabetes mellitus was still uncomplicated but not then well controlled.  His A1c was very high.  However, he had recently been enrolled in a weight reduction program and it was felt that if he lower his weight, his A1c would go lower.  He was obese.  A note from that time indicates that he was not deployable because he could not eat MREs.  He was making some progress in his weight loss.  

In December 2011, the Veteran was on metformin and glipizide.  His blood sugars were not well controlled.  In January 2013, it was noted that the Veteran had been prescribed insulin for his diabetes mellitus in March 2012.  A May 2013 Medical Evaluation Board (MEB) report found diabetes mellitus existed prior to service but was permanently aggravated by service.  The MEB report notes that his diabetes mellitus does not allow him to perform the functions necessary to remain in the army and it was not expected that it would meet retention criteria in the next 5 years, as his need for oral and insulin therapy had been determined to be chronic.  It was preventing him from performing as a field artillery officer and he was unable to maintain control of it with diet and exercise.  In September 2013, the Veteran's Lantus was increased, and he had to have his Neurontin increased for diabetic nerve pain, from twice to 3 times per day.  In October 2013, it was reported that he had increased diabetic nerve pain in association with his uncontrolled diabetes mellitus, and Neurontin was increased.  In March 2014, he was assessed with diabetes mellitus with diabetic autonomic neuropathy.  In November 2014, he was still on Lantus and other medications for diabetes mellitus.   

Based on the evidence, the Board finds that service connection is warranted for the Veteran's diabetes mellitus as having been aggravated during his February 2010 to January 2015 period of service.  He was not on insulin when he started that period of service, and his diabetes was in control.  However, he gained weight and as time went by, his blood sugars became uncontrolled and he had to go on insulin.  This is considered an aggravation of his diabetes mellitus, as reported in the May 2013 MEB report.  See also 38 C.F.R. § 4.119, Diagnostic Code 7913 (2016) (recognizing that when insulin is required, there is a higher degree of disability than when it is not).  
 

Cervical spine disability

Based on the evidence, the Board concludes that service connection is warranted for cervical spine disability.  While it existed prior to the Veteran's February 2010 to January 2015 period of service, it appears to have been aggravated therein.  Osteophytes, apparently not previously reported, were found on service evaluation in February 2013.  Encroachment at C4/5 and C6/7, also apparently not previously reported, were also shown in March 2013.  Additionally, by the time of service treatment in April 2013, the Veteran was no longer able to wear his helmet in the field, due to his neck disability.  The health care provider reported that his cervical spine disability no longer permitted him to perform the functions necessary to be in the Army, and that it was not expected that this situation would significantly improve.  It was mentioned that his cervical spine disability was progressive, and that military tasks had aggravated his neck, preventing him from being a field artillery officer.  Reasonable doubt is resolved in the Veteran's favor.  

Liver disease

Based on the evidence, the Board concludes that service connection is not warranted for liver disease, as the preponderance of the evidence indicates that the Veteran does not have a current liver disease.  None has been diagnosed.  Instead, there was a report of a fatty liver per laboratory or blood studies in March 2009.  This is laboratory finding, rather than a diagnosis of liver disease.  It was noted in February 2003 that labs had since returned to normal.  In the absence of a current disability, service connection cannot be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). 

Bilateral carpal tunnel syndrome

This claim was filed in May 2008.

Service treatment records from periods of service prior to March 1999 show no complaints or treatment for carpal tunnel syndrome.  Nerve conduction studies on VA examination in or about December 1996 showed bilateral distal median neuropathy, and VA medical records show a diagnosis of carpal tunnel syndrome in June 1995.  This was more than 2 years post-service.  A January 1995 report from Joseph W. Pavelsek, M.D. noted that it certainly sounded to him like CTS was aggravated by what the Veteran was doing in service. 

During a December 1996 VA examination, the Veteran reported that he had bilateral wrist pain and numbness since 1978 after prolonged worked at a keyboard.  He reported that during service he "repeatedly reported these complaints."  A VA examiner in December 1996 considered the Veteran's reports and noted that the STRs did not show any complaints, treatment or diagnosis of CTS in service.  The examiner noted that in several examinations "there has been no evidence for sustained sensory or motor damage."  The examiner noted the statements of Dr. Pavelsek as well which suggested that the Veteran had tingling and numbness in his upper extremities which began prior to service and was aggravated by service.  Dr. Pavelsek stated that the symptoms "sound like" CTS and that "it would seem reasonable to assume that it might be service connected."  

The VA examiner concluded that there was not significant evidence to say that the minimal evidence of CTS shown electrically in February 1995 was present during the Veteran's earlier periods of service, the last of which had ended in 1992.  This opinion is more probative than Dr. Pavelsek's opinion as it addresses and considers the evidence of record and the statements by the Veteran and Dr. Pavelsek.  Further, unlike the opinion of Dr. Pavelsek, the VA examiner's opinion is not expressed in speculative language (due to the use of the term "might").  The VA examiner, on the other hand, not only detailed the clinical results that led her to her conclusion, she also had the benefit of studying the entire medical record in order to determine whether carpal tunnel syndrome was incurred in service.  Accordingly, the Board finds that the Veteran's carpal tunnel syndrome was not manifest in or within 1 year following, and is unrelated to, any period of service prior to March 1999.  

The question then becomes whether the Veteran's carpal tunnel syndrome was aggravated by the March to December 1999 or February 2010 to January 2015 period of service.  No evidence has been submitted tending to show that it was aggravated by the March to December 1999 period of service.  He had surgery for CTS prior to that period of service.  To the contrary, in a November 1999 report of medical history, he denied having pertinent symptomatology.  Accordingly, the Board concludes that it not aggravated by his March to December 1999 period of service.  

On the question of whether his carpal tunnel syndrome was aggravated by his February 2010 to January 2015 period of service, there was a VA examination on this matter during that period of service.  At the time, the Veteran reported that it had resolved following prior carpal tunnel release, and was no longer symptomatic.  The MEB/PEB findings from shortly prior to the Veteran's January 2015 service discharge show that the Veteran's carpal tunnel syndrome was deemed to be asymptomatic, resolved, and without any active diagnosis.  There are no findings of carpal tunnel syndrome during this period of service.  The next showing of carpal tunnel syndrome was post-service.  In October and November 2015, the Veteran was working on newly bought property, doing electrical work and so forth, and so he was referred to a private physician who, in December 2015, conducted electrodiagnostic studies and found him to have moderate carpal tunnel syndrome bilaterally.  This evidence does not show that the Veteran's current carpal tunnel syndrome was aggravated by his last period of service.  To the contrary, the content of the history reported at the time suggests that it was not, but that it was instead related to post-service activity; and the Veteran was noted to be asymptomatic on 2 occasions during his last period of service, including just prior to discharge.  No competent probative evidence indicates that it was aggravated by the Veteran's last period of service.  In light of the above, the Board concludes that it was not aggravated by the Veteran's last period of service.  

Sinusitis

This claim was filed in September 2009.  

Based on the evidence, the Board concludes that service connection is not warranted for sinus disability.  Service treatment records show a complaint of allergic rhinitis in October 1987.  Sinusitis was treated with antibiotics long ago in March 1990.  A service redeployment examination in November 1999 was negative.  In December 2009, there was a diagnosis of allergic rhinitis when the Veteran complained of congestion on awakening, which resolved as the day progressed, but no diagnosis of sinus disability.  During the most recent period of active duty service, the Veteran was treated for sinusitis in February 2014.  However, the 2013 VA examination report indicates that he had not had sinusitis in the 12 month period before then.  Sinus findings were normal on examination.  The preponderance of the evidence indicates that while the Veteran had sinusitis in February 2014, there is no competent evidence of record of a current chronic sinus disability at any time during the current appeal (the Veteran's period of active service is not considered in terms of whether there was a current disability following that period of service).  In the absence of a current disability at any (non-service) time during the appeal, service connection cannot be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992).  

Bilateral flat feet

The Veteran submitted a claim for service connection for flat feet in September 2009.  At the time, he reported that he was given arch supports while in the military after boot camp and that after that he just bought over-the-counter shoe inserts. 

Available service treatment records for the Veteran's periods from October 1976 to October 12,1982; September 1987 to September 1992; and from March 1999 through December 1999 do not show any complaints, treatment, or diagnosis of flat feet in service.  The Veteran's feet were normal on service examinations in April 1992 and October 1997 and he denied having or having had foot trouble at the time.  A November 1999 redeployment examination did not note any findings of flat feet.  Instead, his feet were normal on that examination, and the Veteran reported that he was in excellent health at the time and denied having or having had foot trouble.  His feet were found to have normal arches on service examination in February 2004.  The Veteran returned to active duty from February 2010 to January 2015.  The Veteran reported having bilateral pes planus type of foot pain, worse on the left, for the past several years, in October 2012.  He was found to have posterior tibial tendonitis and was casted for orthotic devices with a Kirby skive to help promote proper pedal alignment.  March and April 2013 service treatment records show bilateral flat feet, as does the 2013 VA examination report.  In November 2013, the Veteran was evaluated for a left diabetic fallen arch.  

Based on the evidence, the Board concludes that service connection is warranted for the Veteran's current flat feet disability.  The preponderance of the evidence indicates that it was first manifest during the Veteran's February 2010 to January 2015 period of service.  

Right and left elbow disabilities

These claims were processed as claims for service connection for right and left elbow tendinitis.  However, the scope of the claim is wider than that.  It includes arthritis based on the evidence and circumstances of record.  

Based on the evidence, the Board finds that service connection is warranted for right elbow arthritis.  While the Veteran had right epicondylitis prior to his last period of service from February 2010 to January 2015, right elbow degenerative arthritis was discovered during that last period of service.  On VA examination during service in March 2013, X-rays showed right elbow degenerative arthritis of the ulnotrochlear joint.  This will be considered to have been incurred in service.  

The Board also concludes that service connection is warranted for left elbow arthritis.  While this was not shown during any period of service, it was manifest in October and November 2015 according to a service department treatment record and a December 2015 private medical record.  Since this was within 1 year after the Veteran's January 2015 separation from his last period of service, it will be presumed to have been incurred in that period of service.   

Bilateral hip disability

This claim was filed in September 2009.

Based on the evidence, the Board finds that service connection is not warranted for right or left hip disability.  The preponderance of the evidence including the service treatment records shows that no disorder of either hip was present in service, and that there is no current disability of either hip.  Service treatment records are silent for reference to any hip problems, and no hip disorders were noted on service discharge examination in November 1999.  VA medical records from September 2008 to December 2009 do not report a hip disorder.  The medical/physical evaluation board reports from service ending in January 2015 show the Veteran's hips as normal, as does a March 2013 VA examination report and March 2013 X-rays.  No current diagnoses of any hip disorders have been reported.  In the absence of a currently diagnosed disability, service connection is not warranted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). 

Cervical spine disability

This claim was filed in February 2013.  

In service in January 1990, the Veteran was seen for cervical strain.  However, his cervical spine was normal on service examination in September 1990, and on service examination in April 1992, he reported that he was in excellent health, and his cervical spine was normal.  Post-service in October 1992, the Veteran was seen for neck pain, and acute cervical musculoskeletal strain was assessed.   

He reported that he had had intermittent problems with his neck over the past 4 years, with it becoming persistent and most severe in the past 3 weeks.  However, at the time of his redeployment examination in late November 1999, he reported that he was in excellent health and denied relevant symptomatology, and his cervical spine was normal.  This is more probative evidence indicating that his current cervical spine disc disease disability with arthritis was not manifest before his separation from his period of service in December 1999 or within 1 year thereafter, and no satisfactory evidence shows that it is related to service prior to February 2010, and so service connection based on direct incurrence for periods of service ending prior to 2000 is not warranted.  

Accordingly, the question becomes whether the Veteran's current cervical spine disability was aggravated (chronically increased in severity) by his December 2010 to January 2015 period of service, as it clearly and unmistakably existed prior to that period of service.  

An October 2010 service treatment record notes that the Veteran was post-surgical revisions to his cervical spine.  This had occurred before his current active duty period.  A private medical record from during service in June 2012 shows that X-rays showed some segment degeneration at C4-5, and that he had undergone a disc fusion at C5 and C6.  

A February 2013 medical record shows cervical spine disc and osteophyte pathology.   

At the time of a VA examination in about March 2013, X-rays showed significant disc height loss at C4/5 with posterior osteophyte formation; possible fusion of C5 and C6; and encroachment bilaterally at C4/5 through C6/7 foramen.  The examiner found that there had been no service aggravation, stating that clinic notes from September 2009 to the present showed no cervical spine complaints.  

An April 2013 service treatment record shows that the Veteran complained that he could not wear a helmet in the field due to his neck disability.  The health care provider stated that the Veteran's cervical spine disability does not allow him to perform the functions necessary to be in the Army, and that it was not expected that his neck condition would improve to the degree necessary to remain in the Army.  It was felt that the Veteran's condition would not meet the retention criteria in the next 5 years, due to the chronic nature of his cervical condition and the progressive nature of cervical degenerative disc disease.  He was currently unable to perform any strenuous military duty tasks that aggravate his neck and this prevented him from performing his duties as a field artillery officer.  

Post-service in December 2015, he was assessed as having chronic mid lower cervical radiculopathy likely due to underlying degenerative disc disease.  

Based on the evidence, the Board concludes that service connection is warranted for cervical spine disability on the basis of aggravation during the Veteran's February 2010 to January 2015 period of service.  Cervical spine disability is shown prior to the Veteran's February 2010 to January 2015 period of service.  An October 2003, a health care provider assessed left cervical radiculopathy and stated that there is certainly a nerve root impingement there.  A November 2003 medical record reports that the Veteran had symptomatic cervical disc disease with arthritis.  

Osteophytes, however, which were not previously reported, were found on service evaluation in February 2013.  Encroachment at C4/5 and C6/7, which also was not previously reported, was also shown in March 2013.  Additionally, by April 2013, the Veteran was no longer able to wear his helmet in the field, due to his neck disability.  The health care provider reported at the time that his cervical spine disability no longer permitted him to perform the functions necessary to be in the Army, and that it was not expected that this situation would significantly improve.  It was mentioned that his cervical spine disability was progressive, and that military tasks had aggravated his neck, preventing him from being a field artillery officer.  This information in the Board's judgment is enough to show aggravation of cervical spine disability during the Veteran's last period of service.  Reasonable doubt is resolved in the Veteran's favor.  

Sleep apnea

The first diagnosis of record for the Veteran's sleep apnea was during his February 2010 to January 2015 period of service.  Accordingly, the Board will grant service connection for it as having been first manifest during that period of service.  

GERD

The Veteran appeals from a February 2015 rating decision denying service connection for sleep apnea.  

Service treatment records from periods of service prior to February 2010 are silent for reference to GERD, with the first complaints of heartburn being reported in 2004, and no competent evidence of record relates it to such periods of service.  Accordingly, the Board concludes that the preponderance of the evidence indicates that it was not manifest in any periods of service prior to February 2010 and is unrelated to any such periods of service.  

Next, the Board concludes that GERD clearly and unmistakably existed prior to the Veteran's February 2010 period of service.  He was seen for this disorder beginning in May 2004, and was treated with Zantac and then later Omeprazole in June 2006.  

The question, then, becomes whether the Veteran's GERD was aggravated by his February 2010 to January 2015 period of service.  Shortly prior to that period of service in November 2009, it was well controlled on Omeprazole, with the Veteran reporting less than weekly episodes of heartburn and no other symptoms. 

Then, in service from February 2010, service treatment records from 2011 and 2012 show that the Veteran was being prescribed up to two 20 mg capsules of Omeprazole daily.  A January 2013 service treatment record shows that the Veteran was being prescribed 20 mg of Omeprazole daily for his gastroesophageal reflux disease.  At the time of a March 2013 VA examination, it was reported that the Veteran had been treated with Zantac 150 mg twice a day in May 2004, and had been seen in June 2006 and March 2007, and was placed on Omeprazole 20 mg once a day.  It was noted that in November 2009, it was well controlled on Omeprazole.  It was currently well controlled with no significant effects on his usual occupation or daily activities.  In April 2013, it was reported that the Veteran gets more relief when using 20 mg of Omeprazole twice a day.  An April 2013 MEB narrative summary indicates that the Veteran's GERD was treated and well controlled.  In September 2013 and June 2014, his prescription for Omeprazole was listed as 20 mg twice a day.  In June 2014, the Veteran reported that he sometimes takes up to 3 capsules of Nexium depending on what he eats.  He stated that he did not try to avoid spicy foods since he loves them.  In November 2014, he was prescribed Omeprazole 20 mg twice a day.  On VA examination in January 2015, the Veteran reported that he was on Omeprazole and that his GERD was stable.  

All of the above evidence clearly shows that there was no increase in the severity of it during his period of service ending in January 2015, and there is no satisfactory evidence to the contrary.  

In light of the above, service connection is not warranted for GERD. 

In closing for the service connection claims, the Board notes that the Veteran/his representative has submitted VA Forms 9 which state that he wants to appeal issues on a secondary basis, but do not assert secondary to what, and there is no satisfactory evidence of record of secondary relationships for any of the disabilities for which service connection is being claimed.  Accordingly, secondary service connection would not be warranted for any of the issues discussed above.

Higher ratings

Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155.  38 C.F.R. Part 4 contains the rating schedule.  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 required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2016).

Tinnitus rating

The Veteran has appealed for a rating in excess of 10 percent for tinnitus.  Under the terms of Diagnostic Code 6260, which is specifically for tinnitus, there is no provision for assignment of more than a single 10 percent rating for tinnitus.  See also Smith v. Nicholson, 451 F.3d 1344 (Fed Cir. 2006).  Accordingly, a schedular rating higher than 10 percent for the Veteran's service-connected tinnitus is not permitted.  


Hearing loss rating

The current claim dates back to August 2006, and the Veteran appeals for a compensable rating for his service-connected bilateral hearing loss disability, which is rated as noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100. 

In Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992), the Court noted that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  The test procedures required to measure hearing loss disability are set forth at 38 C.F.R. § 4.85 and are, therefore, uniform in evaluating hearing loss disability.  Thus, an examination that meets the requirements of 38 C.F.R. § 4.85 and the assignment of the disability evaluation through the mechanical application of the rating schedule, as recognized by the Court in Lendemann, would meet the statutory and regulatory requirements that the rating be based, as far as practicable, upon the average impairment of earning capacity.  See 38 U.S.C.A. § 1155.   

On VA examination in June 2008, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
10
20
15
40
21
LEFT
20
10
20
30
20

Speech recognition scores, using the Maryland CNC test, were 96 percent in each ear.  Right ear hearing showed a mild high frequency sensorineural hearing loss and left ear hearing was normal.  

These findings, using 38 C.F.R. § 4.85, Table VI, yield a Roman numeral I for each ear.  These numeric designations yield a noncompensable rating using 38 C.F.R. § 4.85, Table VII.  

On VA examination in April 2013, the Veteran reported that his wife complains that he cannot hear, and that he cannot hear in groups.  His pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
15
20
30
21
LEFT
15
15
10
20
15

Speech recognition scores, using the Maryland CNC test, were 100 percent in each ear.  

These findings, using 38 C.F.R. § 4.85, Table VI, also yield a Roman numeral I for each ear.  These numeric designations yield a noncompensable rating using 38 C.F.R. § 4.85, Table VII.  The Veteran reported a history of stable hearing consistent with that day's testing.  

Neither of the audiometric reports reveals patterns of exceptional hearing loss; thus, consideration of 38 C.F.R. § 4.86 is not warranted.  

Given the above, a compensable rating is not warranted for the Veteran's bilateral hearing loss disability under the rating schedule.  The audiometry described accords with no more than a noncompensable rating under Diagnostic Code 6100.  

Meralgia paresthetic of the thighs from May 2008

The Veteran's right and left thigh meralgia paresthetica are rated by the RO under 38 C.F.R. § 4.124a, Diagnostic Code 8529, which is for paralysis of the external cutaneous nerve of the thigh.  The Veteran is already assigned the maximum 10 percent rating under this Diagnostic Code for each lower extremity's meralgia paresthetica.  Accordingly, a higher rating cannot be assigned under this Diagnostic Code under the rating schedule.  

The Veteran also has a left peroneal nerve palsy with footdrop, identified at the time of a VA examination in February 2017.  However, this is rated separately from his meralgia paresthetica and is not on appeal.  He has a mild incomplete paralysis of his right external popliteal nerve also, according to the February 2017 VA examiner, but that has not been service-connected and so may not be afforded compensation under the guise of his service-connected meralgia paresthetica.  38 C.F.R. § 4.14 (2017). 

Tension headaches from January 2015

Based on the evidence, the Board concludes that a compensable rating is not warranted for the Veteran's service-connected tension headaches, which are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100.  Under such code, a 10 percent is not warranted unless there are characteristic prostrating attacks averaging one in 2 months over the last several months.  With less frequent attacks, a noncompensable rating is warranted.  The Veteran's MEB from shortly prior to his January 2015 service discharge notes no significant occupational effects and no effect on daily activities due to his headaches.  It was noted that they are not incapacitating and had not required treatment.  The VA examination report from March 2013 noted that the Veteran had headaches 2-3 times per week, feeling like pressure behind the right eye, with average intensity of a 5, but sometimes as severe as a 10, but lasting only a few hours and relieved with a cool rag, and with no other symptoms reported.  The evidence shows that the Veteran does not have characteristic prostrating attacks averaging one in 2 months over the last several months.  This is not contended or shown.  

Erectile dysfunction with special monthly compensation from January 2015.   

Based on the evidence, the Board concludes that a compensable rating is not warranted for erectile dysfunction.  The March 2013 VA examination report shows that the Veteran's penis was normal, and no penile deformity is shown in that report or elsewhere in the record, nor is it claimed.  The Veteran reported at the time of the March 2013 VA examination that he could obtain a partial erection and reach vaginal penetration with normal ejaculation.  Penis findings were normal.  A May 2017 VA medical record indicates that he is on Viagra.  For a compensable rating to be assigned for erectile dysfunction under 38 C.F.R. § 4.115b, Diagnostic Code 7522, there must be both penile deformity and loss of erectile power.  This would warrant a 20 percent rating.  However, since the preponderance of the evidence indicates that there is no penile deformity and he retains the ability to have a partial erection, per 38 C.F.R. § 4.31, a noncompensable rating is assigned.  Also, there is no evidence of record that he has the loss of use of a creative organ necessary for special monthly compensation under 38 C.F.R. § 3.350.  The evidence indicates that the Veteran is able to have vaginal penetration with normal ejaculation. 

The Board is grateful to the Veteran for his years of honorable service.  


ORDER

Service connection for diabetes mellitus is granted.  

Service connection for liver disease is denied.

Service connection for bilateral carpal tunnel syndrome is denied.

Service connection for sinusitis is denied.

Service connection for flat feet is granted.  

Service connection for right elbow arthritis is granted.  

Service connection for left elbow arthritis is granted.

Service connection for bilateral hip disability is denied.

Service connection for cervical spine disability is granted.

Service connection for sleep apnea is granted.

Service connection for GERD is denied. 

A schedular rating in excess of 10 percent for tinnitus is denied.  

A compensable rating for bilateral hearing loss disability is denied.

A schedular rating in excess of 10 percent for right thigh meralgia paresthetica is denied.

A rating in excess of 10 percent for left thigh meralgia paresthetica is denied.

A compensable rating for tension headaches is denied.

A compensable rating for erectile dysfunction and special monthly compensation for loss of use of a creative organ is denied. 


REMAND

The Veteran's most recent VA examination for PTSD was in January 2017.  In April 2018, an employment colleague reported that since early March 2018, the Veteran has been on edge since learning he was under scrutiny for his training performance and had been put on notice that he had unsatisfactory classroom facilitation in his employment.  Based on this statement, it sounds as though the Veteran's PTSD may have increased in severity since the last VA examination.  Accordingly, another VA examination is required.  

The issues of higher ratings for the Veteran's lumbar strain disability, right shoulder disability, and right and left knee disabilities must be remanded for VA examinations in order to obtain the information required by Correia v. McDonald, 28 Vet. App. 158 (2016).  

On remand, any additional relevant medical records which are not of record should be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Make arrangements to obtain any additional medical records relevant to the matters being remanded.  

2.  After the above development is completed, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected PTSD disability.  The claims folder should be made available to the examiner.  All indicated tests should be performed, and the results should be reported in detail.  The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service-connected PTSD disability.  The examiner should also provide a full description of the manner and extent to which the Veteran's service-connected PTSD disability, considered alone, impairs functions related to employment.

3.  After the above development is completed, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected lumbar strain with arthritis disability.  The claims folder should be made available to the examiner.  All indicated tests should be performed, and the results should be reported in detail.  The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service-connected lumbar strain with arthritis disability, and to identify and describe all limitation of function due to the disability.  

a. Conduct range of motion testing, specifically noting the ranges of motion in degrees on active and passive motion and weight-bearing and nonweight-bearing. If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done.

b. Consider any reports of flare-ups and describe or estimate any related functional impairment in terms of additional range of motion loss. The frequency, duration, characteristics, and severity should also be noted. If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done.

4.  After the above development is completed, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected right shoulder disability.  The claims folder should be made available to the examiner.  All indicated tests should be performed, and the results should be reported in detail.  The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service-connected right shoulder disability, and to identify and describe all limitation of function due to the disabilities.  

a. Conduct range of motion testing, specifically noting the ranges of motion in degrees on active and passive motion and weight-bearing and nonweight-bearing. If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done.

b. Consider any reports of flare-ups and describe or estimate any related functional impairment in terms of additional range of motion loss. The frequency, duration, characteristics, and severity should also be noted. If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done.

5.  After the above development is completed, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected right and left knee disabilities.  The claims folder should be made available to the examiner.  All indicated tests should be performed, and the results should be reported in detail.  The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service-connected right and left knee disabilities, and to identify and describe all limitation of function due to the disabilities.  

a. Conduct range of motion testing, specifically noting the ranges of motion in degrees on active and passive motion and weight-bearing and nonweight-bearing. If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done.

b. Consider any reports of flare-ups and describe or estimate any related functional impairment in terms of additional range of motion loss. The frequency, duration, characteristics, and severity should also be noted. If any indicated testing cannot be completed, then the examiner should specifically indicate why such testing cannot be done.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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