Citation Nr: 18131245 Decision Date: 08/31/18 Archive Date: 08/31/18 DOCKET NO. 14-44 247 DATE: August 31, 2018 ORDER The claim of entitlement to service connection for a left knee disability is reopened; to this limited extent, the appeal is granted. The claim of entitlement to service connection for a right knee disability is reopened; to this limited extent, the appeal is granted. The claim of entitlement to service connection for a respiratory disorder is reopened; to this limited extent, the appeal is granted. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for bilateral flat foot is denied. Entitlement to service connection for bilateral plantar fasciitis is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to a compensable rating for status post cataract removal with replacement lens, right eye, is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for bilateral shin splints is remanded. Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for dermatitis is remanded. Entitlement to service connection for pseudofolliculitis barbae is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. Service connection for bilateral knee disability was denied in an April 2003 rating decision on the basis that there was no permanent residual or chronic disability shown during or subsequent to active military service. New and material evidence was not received within a year of notice of the decision. The Veteran did not initiate an appeal of this decision and it became final. 2. Evidence received since the April 2003 denial was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating his claim of service connection for left and right knee disabilities. 3. Service connection for a respiratory disorder was denied in an April 2003 rating decision on the basis that there was no permanent residual or chronic disability shown during or subsequent to active military service. New and material evidence was not received within a year of notice of the decision. The Veteran did not initiate an appeal of this decision and it became final. 4. Evidence received since the April 2003 denial was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating his claim of service connection for a respiratory disorder. 5. The Veteran reported experiencing right shoulder pain and limitation of motion during active military service and asserted that these impairments have continued therefrom; however, there is no competent evidence of a nexus. 6. The Veteran reported experiencing bilateral hip pain during active military service and asserted that these impairments have continued therefrom; however, there is no competent evidence of a nexus. 7. The Veteran has a post-service diagnosis of pes planus and subjective complaints of bilateral foot pain, he reported experiencing bilateral foot pain during active military service and asserted that these impairments have continued therefrom; however, there is no competent evidence of a nexus. 8. The Veteran has current diagnoses of degenerative joint disease at L4-5 and lumbago which have not been shown to be etiologically related to service due to a lack of an in-service incurrence. 9. The Veteran has post-service right ankle pain and he reported experiencing right ankle pain during active military service and asserted that it continued therefrom; however, there is no competent evidence of a nexus. 10. The Veteran’s corrected distance vision in the right eye is 20/40 or better, and he has no visual field defect or incapacitating episodes. To the extent that he has experienced double vision, it is occasional. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim of entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to reopen the claim of entitlement to service connection for a respiratory disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for bilateral flat foot have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for entitlement to service connection for plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 10. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 11. The criteria for entitlement to a compensable rating for status post cataract removal with replacement lens, right eye, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.75-4.79, Diagnostic Code 6027-6066; 89 Fed. Reg. 15316 (Apr. 10, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1992 to December 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2017, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and Material Evidence The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. 1. Whether new and material evidence was presented to reopen the claim of entitlement to service connection for a left knee disability. 2. Whether new and material evidence was presented to reopen the claim of entitlement to service connection for a right knee disability. The requests to reopen claims of entitlement to service connection for left and right knee disabilities will be adjudicated concurrently because the initial denial to which they relate was for bilateral knee disability. Service connection for bilateral knee disability was denied in an April 2003 rating decision on the basis that there was no permanent residual or chronic disability shown during or subsequent to active military service. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the April 2003 denial, the Veteran has sought treatment for both knees. A May 2008 treatment record show intermittent bilateral knee pain that flares at times. In October 2014, X-ray imaging showed minimal degenerative joint disease in the right knee. No such finding was provided for the left knee; however, the Veteran continues to report experiencing pain in that knee. Etiological opinions relating to both knees were also obtained in a May 2017 VA examination report. As this evidence was not before VA at the time of the prior denial, it is new. As it aids in establishing a current disability eligible for service connection for both knees and provides new etiological evidence, it is also material to the claim. Accordingly, new and material evidence has been received. The claim of entitlement to service connection for bilateral knee disability is reopened. As noted on the title page, the appeal identified this issue as two separate claims of service connection: one for a right knee disability and a second for a left knee disability. Both will be addressed in the REASONS FOR REMAND section below. 3. Whether new and material evidence was presented to reopen the claim of entitlement to service connection for a respiratory disorder. Service connection for a respiratory disorder was denied in an April 2003 rating decision on the basis that there was no permanent residual or chronic disability shown during or subsequent to active military service. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the April 2003 denial, the Veteran has sought treatment for his respiratory problems. Treatment records from his private physicians show a current diagnosis of asthma and a prior history of lung infections. See, e.g., private treatment records (04/04/2014, 10/24/2014). As this evidence was not before VA at the time of the prior denial, it is new. As it aids in establishing a current respiratory disability eligible for service connection, it is also material to the claim. Accordingly, new and material evidence has been received. The claim of entitlement to service connection for a respiratory disorder is reopened. The reopened claim will be addressed in the REASONS FOR REMAND section below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. Entitlement to service connection for a right shoulder disability The Veteran seeks service connection for a right shoulder disability. For the reasons that follow, the Board finds that service connection is not warranted. During the July 2017 Board hearing, the Veteran testified that he experienced pain and limitation of motion of the right shoulder during service. He testified that he did not recall specific treatment for the condition but believed he was likely prescribed 800mg Motrin. He testified that the shoulder symptomology has continued since service. A review of his service treatment records (STRs) does not show complaints or treatment related to the right shoulder. Post-service medical records also do not document a problem with the right shoulder, though there is evidence of a left shoulder disability. Thus, the evidence of record consists of the Veteran’s subjective assertion that he experienced right shoulder pain and limitation of motion during active service that such has continued to the present. The Veteran is competent to identify readily observable symptomology and to describe experiencing such symptomology during service. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). There is nothing obvious of record to impugn his credibility in this regard, and there is no affirmative evidence to the contrary. The Veteran is not, however, competent to provide an etiological connection between any current impairment and in-service symptomology because he has not been shown to possess the requisite medical training and expertise to be deemed competent to opine on such a complex medical matter. See Jandreau, 492 F.3d at 1377 n.4. To the extent that his subjective statements have established a current disability, see Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), and in-service right shoulder pain and limitation of motion, for the aforementioned reason they are not competent to establish a nexus or indicate that one may exist between current disability and service, as the Veteran has not been shown to have the requisite medical knowledge and expertise to be deemed competent to opine on such a complex medical matter. Something more is needed to trigger VA’s duty to afford him a medical examination or opinion to aid in substantiating the claim. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010); see 38 C.F.R. § 3.159(c)(4). Moreover, the Veteran’s subjective complaints of right shoulder pain and limitation of motion have not been shown to constitute a chronic disability under 38 C.F.R. § 3.309(a); therefore, VA regulations pertaining to presumptive service connection and a continuity of symptomatology are not for application. 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). In sum, the Veteran reported experiencing right shoulder pain and limitation of motion during active military service and asserted that these impairments have continued therefrom; however, there is no competent evidence of a nexus. Accordingly, service connection for a right shoulder disability is not warranted. 5. Entitlement to service connection for a left hip disability 6. Entitlement to service connection for a right hip disability The Veteran seeks service connection for left and right hip disabilities. As the facts and analysis for both claims are similar, they will be adjudicated concurrently. For the reasons that follow, the Board finds that service connection is not warranted. During the July 2017 Board hearing, the Veteran testified that he was treated for hip pain during service. In particular, he recalled pain in the right hip. He testified that his bilateral hip symptomology has continued since service. A review of his STRs does not show complaints or treatment related to either hip. Post-service medical records also do not document a problem with either hip. Thus, the evidence of record consists of the Veteran’s subjective assertion that he experienced bilateral hip pain during active service that has continued to the present. The Veteran is competent to identify readily observable symptomology and to describe experiencing such symptomology during service. 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 n.4. There is nothing obvious of record to impugn his credibility in this regard, and there is no affirmative evidence to the contrary. However, the Veteran’s subjective bilateral hip pain has not been shown to constitute a chronic disability under 38 C.F.R. § 3.309(a); therefore, VA regulations pertaining to presumptive service connection and a continuity of symptomatology are not for application. 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker, 708 F.3d at 1340. To the extent that his subjective statements have established a current disability, see Saunders, 886 F.3d at 1356, and an in-service incurrence, for the aforementioned reason they are not competent to establish a nexus or indicate that one may exist and something more is needed to trigger VA’s duty to afford him medical examination or opinion to aid in substantiating the claims. Waters, 601 F.3d at 1278-79; see 38 C.F.R. § 3.159(c)(4). Further, the Veteran is not competent to provide an etiological connection between any current impairment and in-service symptomology because he has not been shown to have the requisite medical training and expertise to be deemed competent to opine on such a complex medical matter. See Jandreau, 492 F.3d at 1377 n.4. In sum, the Veteran reported experiencing bilateral hip pain during active military service and asserted that these impairments have continued therefrom; however, there is no competent evidence of a nexus. Accordingly, service connection for a left or right hip disability is not warranted. 7. Entitlement to service connection for bilateral flat foot 8. Entitlement to service connection for bilateral plantar fasciitis The Veteran seeks service connection for bilateral flat foot and bilateral plantar fasciitis. As the facts and analysis for both claims are similar, they will be adjudicated concurrently. For the reasons that follow, the Board finds that service connection is not warranted. During the July 2017 Board hearing, the Veteran testified that he began experiencing foot pain during service. He could not recall a specific injury or event that caused the onset of pain or whether he was prescribed orthotics or anything of that nature. Generally, he believes his symptoms have continued since service. A review of his STRs does not show complaints or treatment related to either foot. Post-service medical records document a 2005 diagnosis of pes planus, and complaints of bilateral foot pain. See private treatment record (11/21/2005); E.g., private treatment records (12/09/2005, 10/09/2014); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). There is no current diagnosis of plantar fasciitis; however, the Veteran statements asserting the presence of such a disability and his complaints of foot pain do weigh in favor of that current disability. Thus, the evidence shows a post-service diagnosis of pes planus and complaints of foot pain. The Veteran is competent to identify readily observable symptomology and to describe experiencing such symptomology during service. 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 n.4. There is nothing obvious of record to impugn his credibility in this regard, and there is no affirmative evidence to the contrary. However, although pain may constitute a disability, the Veteran’s pes planus and subjective bilateral foot pain are not considered a chronic disability under 38 C.F.R. § 3.309(a); therefore, VA regulations pertaining to presumptive service connection and a continuity of symptomatology are not for application. 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker, 708 F.3d at 1340. To the extent that the evidence establishes the presence of bilateral foot pain in service, and post service bilateral foot pain, for the Veteran’s statements are not competent to establish a nexus to current bilateral foot disability, or indicate that one may exist and something more is needed to trigger VA’s duty to afford him a medical examination or opinion to aid in substantiating the claims. Waters, 601 F.3d at 1278-79; see 38 C.F.R. § 3.159(c)(4). The Veteran has not been shown to possess the requisite medical training and expertise to be deemed competent to provide an etiological connection between any current impairment and in-service symptomology because such constitutes a complex medical matter. See Jandreau, 492 F.3d at 1377 n.4. In sum, the Veteran has a post-service diagnosis of pes planus and subjective complaints of bilateral foot pain, and he reported experiencing bilateral foot pain during active military service and asserted that these impairments have continued therefrom; however, there is no competent evidence of a nexus. Accordingly, service connection for bilateral flat foot or bilateral plantar fasciitis is not warranted. 9. Entitlement to service connection for a low back disability The Veteran seeks service connection for a low back disability. For the reasons that follow, the Board finds that service connection is not warranted. During the July 2017 Board hearing, the Veteran testified that he had a gradual onset of low back pain during service and there was associated limitation of motion. He testified that he did seek treatment during service, and the symptomology continued after service. A review of his STRs does not show complaints or treatment related to a low back problem. Post-service medical records reveal current diagnoses of degenerative disc disease at L4-5 and lumbago. See private treatment records (10/15/2012, 10/24/2014). The Board also acknowledges that during the course of treatment in April 2004, the Veteran reported to his physician that he had experienced back pain for a couple years, and that in August 2005 he had been involved in a motor vehicle accident that resulted in symptomology throughout the entire spinal column. See private treatment records (04/06/2004, 09/30/2005, 07/18/2006). The Veteran is competent to identify readily observable symptomology and to describe experiencing such symptomology during service. 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 n.4. There is nothing obvious of record to impugn his credibility with regard to the description of his symptoms. As to the timing of their onset, however, his credibility is impugned due to prior inconsistent statements. To that end, in April 2004, he did report to his treating physician that he had experienced back pain for a couple years. This timeline places the onset of his back condition well beyond discharge from active service, which occurred in December 1995. It also directly contradicts his more recent assertion that his symptoms started during service and continued therefrom. The Board finds that April 2004 statement to his private physician to be probative because it was made in the course of treatment and is thereby viewed as relatively more reliable. Accordingly, the Board finds that his reports of low back symptomology during service and a continuation of symptoms therefrom are outweighed. As there is no in-service incurrence, VA does not have a duty to aid the Veteran in substantiating his claim by providing a medical examination or opinion. 38 C.F.R. § 3.159(c)(4); cf. McLendon v. Nicholson, 20 Vet. App. 79, 81, 82-83 (2006) (“the Board could have found that the evidence with regard to Mr. McLendon’s report of an in-service injury was not credible; however, it did not do so. Rather, it found that Mr. McLendon suffered an in-service back injury … which satisfies the second element.”). The Board also acknowledges that any current diagnosis of degenerative “joint” disease is considered a chronic disease under § 3.309(a); however, VA regulations pertaining to presumptive service connection and a continuity of symptomatology are not for application as it has not been shown to have manifest to a degree of 10 percent or more during service or within a year of discharge from service, and because it was not noted during service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); see Walker, 708 F.3d at 1340. In sum, the Veteran has current diagnoses of degenerative disc disease at L4-5 and lumbago but they cannot be etiologically related to service due to a lack of an in-service incurrence. Accordingly, service connection for a low back disability is not warranted. 10. Entitlement to service connection for a right ankle disability The Veteran seeks service connection for a right ankle disability. For the reasons that follow, the Board finds that service connection is not warranted. During the April 2017 Board hearing, the Veteran testified that he experienced pain in his ankles during service. He reported his ankle problems were treated at the same time as his knee problems. He testified that his ankle symptomology has continued since service. The Veteran’s STRs do not show any complaints or treatment related to a right ankle problem – there are notations relating to the left ankle. Post-service medical records document intermittent pain in the right ankle. E.g., private treatment records (05/07/2008, 05/21/2008); Romanowsky, 26 Vet. App. at 294. The Veteran is competent to identify readily observable symptomology and to describe experiencing such symptomology during service. 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 n.4. There is nothing obvious of record to impugn his credibility in this regard, and there is no affirmative evidence to the contrary. However, while pain may constitute current disability if shown to result in functional impairment, the Veteran’s right ankle pain does not constitute a chronic disability under 38 C.F.R. § 3.309(a); therefore, VA regulations pertaining to presumptive service connection and a continuity of symptomatology are not for application. 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker, 708 F.3d at 1340. To the extent that the evidence has established a current disability, see Saunders, 886 F.3d at 1356, his subjective statements are not competent to establish a nexus or indicate that one may exist and something more is needed to trigger VA’s duty to afford him medical examination or opinion to aid in substantiating the claims. Waters, 601 F.3d at 1278-79; see 38 C.F.R. § 3.159(c)(4). The Veteran has not been shown to have the requisite medical training and expertise to be deemed competent to provide an etiological connection between any current right ankle pain and in-service symptomology, as such constitutes a complex medical matter. See Jandreau, 492 F.3d at 1377 n.4. In sum, the Veteran has post-service right ankle pain and he reported experiencing right ankle pain during active military service and asserted that it continued therefrom; however, there is no competent evidence of a nexus between current right ankle disability and service. Accordingly, service connection for a right ankle disability is not warranted. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 11. Entitlement to a compensable rating for status post cataract removal with replacement lens, right eye The Veteran seeks a compensable rating for his right eye disability. The appeal period before the Board begins on July 7, 2012, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the reasons that follow, the Board finds that a compensable rating is not warranted. The Veteran’s right eye disability is rated noncompensable under 38 C.F.R. § 4.79, Diagnostic Code (DC) 6027-6066, for cataract. The Board notes his cataract was surgically removed prior to the appeal period and a replacement lens has been present throughout the appeal period; he is considered pseudophakic. The hyphenated DC indicates that his postoperative cataract disability is rated based on visual impairment, in particular, loss of visual acuity. 38 C.F.R. § 4.27. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria distinguish preoperative and postoperative cataracts. As the Veteran has a postoperative cataract, the Board will not review the criteria for a preoperative cataract. For postoperative cataracts, both the former and revised rating criteria distinguish between pseudophakia and aphakia. If there is a replacement lens present (pseudophakia), then the former criteria instructed to evaluate based on visual impairment whereas the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. If there is no replacement lens (aphakia), both the former and revised criteria instruct to evaluate based on aphakia, which is DC 6029. The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Higher ratings are available for greater frequency of incapacitating episodes; however, they are not applicable to the facts of this appeal. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). Subject to the provisions of § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. Id. § 4.75(d). The evaluation for visual impairment of one eye should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under DC 7800). 38 C.F.R. § 4.75(d). The Board notes that the provisions of § 3.383(a) are not applicable to the facts of this appeal. The table of Impairment of Central Visual Acuity encompasses DCs 6061-66. As pertinent to the facts of this appeal, DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in one eye (the poorer eye) is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Higher ratings are available but are not applicable to the facts of this appeal. The Veteran underwent a VA examination in March 2014. He reported blurred vision. The examiner diagnosed pseudophakia and glaucoma; the glaucoma is nonservice-connected. Corrected distance vision measured 20/30 or better bilaterally. Pupils were 5mm bilaterally, round and reactive to light, and without defect. There was no corneal irregularity that resulted in severe astigmatism. Slit lamp examination revealed the right eye had a replacement lens. There was no diplopia or visual field defect. The examiner marked that there was no decrease in visual acuity or visual impairment caused by his pseudophakia. There was no scarring or disfigurement, and the condition did not cause incapacitating episodes requiring prescribed bedrest and treatment by a physician. The examiner opined that there was no functional impact on his ability to work. The Veteran testified before the undersigned VLJ in July 2017. He reported that he still has blurry vision, double vision, and occasional headaches due to that symptomology. It was also noted that he wears glasses. He also added that he experiences floaters. Based on a review of all evidence of record, the Board finds that a compensable rating is not warranted. Under the former criteria, the Veteran’s disability is to be rated based on visual impairment. In this instance, corrected distance vision in the right eye was 20/40 or better. For rating purposes, the non-service-connected left eye is treated as having 20/40 vision, as well. Applying these measurements to the table of Impairment of Central Visual Acuity yields a noncompensable rating under DC 6066. The Board notes the Veteran reported subjective double vision. The technical term for double vision is diplopia. The March 2014 VA examination report showed the Veteran’s right eye disability was not productive of visual impairment, to include diplopia. In accordance with 38 C.F.R. § 4.31, diplopia that is occasional or correctable with spectacles is noncompensable. 38 C.F.R. § 4.79, DC 6090, Note. Under the revised criteria, the same findings for visual impairment are applicable. With regard to incapacitating episodes, the evidence does not show that the Veteran has received the type of medical treatment during the appeal period that would be considered an incapacitating episode, as defined by Notes (1) and (2) following the General Rating Formula for Diseases of the Eye. Thus, a noncompensable rating is warranted under the revised criteria, as well. The Board has considered whether a higher compensable rating is warranted and finds that it is not. A higher rating based on visual acuity is not warranted because the Veteran’s right eye corrected vision has not been 20/50 or worse. A higher rating is not warranted based on incapacitating episodes or visual field defect because they are present. A higher rating is not warranted based on diplopia because it has not shown to be more than occasional. Accordingly, a higher 10 percent rating is not warranted. During the July 2017 Board hearing, the Veteran reported that his subjective blurry vision and double vision cause occasional headaches. If a service-connected disability causes another disability to occur, the appropriate course of action is to grant secondary service connection and rate the disabilities separately. Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006) (citing Libertine v. Brown, 9 Vet. App. 521, 522 (1996)). During the hearing, the VLJ did advise the Veteran and his representative of the need to file a separate claim for service connection for headaches if they should so choose. The Veteran’s symptoms of blurry vision and floaters are not considered in the schedular rating criteria. Accordingly, the Board has considered whether referral for an extraschedular rating is warranted. 38 C.F.R. § 3.321(b). “Whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry”: If (1) the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (clarifying that the three “steps” identified in Thun are actually three necessary “elements” of an extraschedular rating analysis). “[T]he first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms.” Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Although the first and second elements are interrelated, they involve separate and distinct analyses. Id. Thus, “an error with respect to one element does not necessarily affect the Board’s analysis of the other element.” Id. “If either element is not met, then referral for extraschedular consideration is not appropriate.” Id. at 494-95. The Veteran’s blurry vision and floaters are extraschedular symptoms. The evidence does not indicate that these symptoms have caused frequent hospitalization or marked interference with employment. The Veteran has not suggested that they have an occupational impact and the March 2014 VA examiner opined that the service-connected disability had no occupational impact. Accordingly, the second Thun element has not been satisfied. Referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b). There are no additional expressly or reasonably raised issues related to this claim presented on the record. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran seeks service connection for left and right knee disabilities. As the reasons for remand are similar, they will be explained concurrently. Remand of both claims is required to obtain outstanding VA treatment records and schedule a new VA examination. Regarding the outstanding VA treatment records, during the July 2017 Board hearing, the Veteran testified that he has received VA treatment for both knees. See Hr’g Tr. 18-20, 23. Accordingly, the Board is on notice that there are outstanding treatment records related to these claims. Remand is required to obtain and associate these records with the claims file. 38 C.F.R. § 3.159(c)(2). Regarding the VA examination, the Veteran was last examined in May 2017. The examiner found that there was no diagnosis for either knee. The examiner opined that neither knee condition was related to service and provided essentially the same rationale for both knees. First, the examiner explained that a May 2008 treatment record showed the Veteran is an avid runner who sought treatment for bilateral knee pain and discomfort and his doctor advised him to only run once a week to avoid putting too much stress on his knees. Second, the examiner explained that the Veteran separated from the military in 1995 and his present knee complaints started in 2005, which make it hard to connect the present complaints to his service. The Board finds a new examination is needed for several reasons. First, an October 2014 X-ray study showed minimal degenerative joint disease in the right knee; thus, there is a diagnosis for that knee. Second, the left knee does not have a diagnosis; however, pain productive of functional loss, which the Veteran may have, is considered a disability for VA purposes. Third, the examiner’s rationale was inadequate. The statement that the Veteran’s knee problems have been treated in relation to his running implies that, as a result, they cannot be related to service. This is incorrect. The law does allow for service connection if the knee problems were incurred in, or are otherwise related to, active service. Moreover, the examiner’s statement regarding a passage of time between discharge from service and treatment for a knee condition failed to consider the Veteran’s statements indicating that he had been experiencing chronic bilateral knee problems since approximately the 1990s. E.g., private treatment record (05/21/2008) (patient complains of chronic bilateral knee pain for approximately 10 years). For the aforementioned reasons, remand is required to schedule a new VA examination to determine the nature and etiology of his left and right knee disabilities. 38 C.F.R. § 4.2. 3. Entitlement to service connection for bilateral shin splints is remanded. The Veteran seeks service connection for bilateral shin splints. During the July 2017 Board hearing, he testified that his bilateral shin splints started in service and continued therefrom. He believed that he was treated for it one time when he went to get his knees looked at. The Veteran’s STRs show he complained of medial tibial pain in the left leg after falling down the stairs. See STR (06/06/1995). Post-service treatment records show complaints of right tibial pain. See, e.g., private treatment record (05/28/2008); Romanowsky, 26 Vet. App. at 294. These records, when considered in light of his testimony, provide an indication that he may have a current shin splint disability etiologically related to service. Accordingly, on remand, the Veteran should be scheduled for a VA examination to determine the nature and etiology of his condition. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 81. 4. Entitlement to service connection for a respiratory disorder is remanded. The Veteran seeks service connection for a respiratory disorder. During the July 2017 Board hearing, he testified that he has a current diagnosis of asthma and during service he was treated for lung infections and pneumonia. He believes his current problems are related, and also notes that his military occupational specialty (MOS) was nuclear biological chemical specialist and training for it required him to clean biological agents off of vehicles. That process required him to enter a chamber and be exposed to nerve agents. Thus, he believes that exposure may be a causative factor as well. Regarding the exposure, the Board notes that the Veteran did relate that he underwent the training wearing a full protective suit, to include a gas mask with hood and boots. Based on his own statements, therefore, the Board finds that he was generally not exposed to nerve agents or chemicals in a chamber due to the protective gear he wore. On the other hand, the Veteran’s STRs do document exposure to DS2, a decontamination agent; therefore, exposure to DS2 is established and its etiological relevancy will be considered. See STR (12/16/1994) (noting prior exposure to DS2). Post-service medical records show a current diagnosis of asthma and a history of lung infections. An April 2014 record noted a history of lung infections one to two times per year. When these facts are considered in light of his in-service lung problems, exposure to DS2, and his testimony regarding the onset of symptomology, the Board finds there is an indication his current respiratory problems may be related to service. Accordingly, on remand, the Veteran should be scheduled for a VA examination to determine the nature and etiology of his condition. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 81. 5. Entitlement to service connection for dermatitis is remanded. 6. Entitlement to service connection for pseudofolliculitis barbae is remanded. The Veteran seeks service connection for dermatitis and pseudofolliculitis barbae. As the reasons for remand are similar, they will be explained concurrently. Remand of both claims is required to obtain outstanding VA treatment records and schedule a VA examination. Regarding the outstanding VA treatment records, during the July 2017 Board hearing, the Veteran testified that he is currently treated for both conditions at VA and prescribed topical medications. See Hr’g Tr. 26. Accordingly, the Board is on notice that there are outstanding treatment records relevant to these claims. Remand is required to obtain and associate these records with the claims file. 38 C.F.R. § 3.159(c)(2). Regarding the VA examinations, the Veteran’s STRs show treatment for rashes requiring steroid ointment and shaving profiles for pseudofolliculitis barbae. See, e.g., STRs (01/14/1994, 05/15/1995). At the July 2017 Board hearing, the Veteran testified that these problems continued from service, and that he is currently treated by VA for rashes and pseudofolliculitis barbae. See Hr’g Tr. 26-27. Accordingly, the Board finds that the evidence indicates there may be a skin disability related to service. Remand is required to schedule a VA examination to determine the nature and etiology of both conditions. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 81. It is noted that the Veteran was exposed to DS2 during service. The opinion provided by the medical examiner shall consider the causative effects of that exposure. See Hr’g Tr. 29. 7. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus. Remand is required to schedule a VA examination. During the July 2017 Board hearing, the Veteran testified that he complained of ringing ears during service and he believed the problems to be related to artillery fire during training. See Hr’g Tr. 43-44. A review of his STRs does not show a complaint of tinnitus or ringing ears; however, there are two audiograms from 1994 and 1995 that indicate his hearing acuity was tested subsequent to exposure to noise; the medical records noted that noise exposure was not normally expected with his MOS. See STRs (02/11/1994, 09/13/1995). Considering the Veteran’s statements along with the documented in-service noise exposure, the Board finds there is an indication he may have a current disability related to service. Remand is required to schedule a VA examination to determine the nature and etiology of his condition. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 81. 8. Entitlement to service connection for a left ankle disability The Veteran seeks entitlement to service connection for a left ankle disability. Remand is required to schedule a VA examination. During the July 2017 Board hearing, the Veteran testified that he sought treatment for his ankles during service and the symptomology continued therefrom. See Hr’g Tr. 39-40. A review of his STRs shows he did complain of ankle problems and was diagnosed with a Grade I sprain. See STRs (09/06/1994, 09/16/1994, 09/20/1994). Post-service treatment records also show left ankle pain and instability, see, e.g., private treatment records (10/27/2005, 05/07/2008); however, it is noted that in August 2005 the Veteran was involved in a motor vehicle accident that produced left ankle pain, as well. Regardless, the Veteran’s in-service left ankle problems combined with his more recent complaints and statements asserting a continuity of symptoms create an indication that he may have a current disability related to active service. Remand is required to schedule a VA examination to determine the nature and etiology of the condition. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 81. 9. Entitlement to service connection for sinusitis The Veteran seeks entitlement to service connection for sinusitis. Remand is required to obtain outstanding VA treatment records and schedule a VA examination. Regarding the VA treatment records, during the July 2017 Board hearing, the Veteran testified that he has been prescribed medications by VA doctors for sinus problems. Accordingly, the Board is on notice that there exist outstanding treatment records related to this claim. On remand they should be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(2). Regarding the VA examination, during the July 2017 Board hearing, the Veteran testified that he did not believe he had an actual diagnosis of sinusitis and he could not remember why he thought it was related to service. See Hr’g Tr. 32-33. Nonetheless, he believed that he did have a reason for filing the claim at the time he did so. Id. A review of his current medical records actually shows he has been diagnosed with sinusitis. See private treatment record (04/04/2014). The diagnosis was made in conjunction with one for bronchitis, and the treatment record noted that the Veteran had a history of similar symptomology occurring one to two times per year diagnosed as a lung infection. Id. A review of the Veteran’s STRs shows he was treated for lung infections, acute viral infections, and pneumonia. See, e.g., STRs (12/10/1992, 01/13/1993, 12/20/1994, 08/25/1995). Accordingly, the evidence shows the Veteran has a current diagnosis of sinusitis, has had similar symptoms occurring one to two times annually in the past, and he was treated for similar diseases in service. Thus, there is an indication that his current disease may be related to service. Remand is required to schedule a VA examination to determine the nature and etiology of the condition. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 81. It is noted that the Veteran was exposed to DS2 during service. The opinion provided by the medical examiner shall consider the causative effects of that exposure. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his left and right knee disabilities. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. The examiner should provide diagnoses for each knee disability. The examiner should note that an October 2014 treatment record indicates X-ray imaging showed minimal degenerative joint disease in the right knee, and a May 2008 treatment record indicated the left knee problems may be related to patella maltracking or malalignment syndrome. For each knee, the examiner should provide an answer to the following: Is it at least as likely as not (a 50 percent or greater probability) that his knee disability was incurred in, or is otherwise related to, his active service? The examiner should recognize that if the disability onset during service, then a causative factor is not required. The examiner should consider the Veteran’s statements, to include ones made during treatment in May 2008 indicating that he had bilateral chronic knee problems for approximately 10 years. A complete explanation must be provided for all opinions expressed. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his shin pain. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. The examiner should provide a diagnosis for the Veteran’s shin pain. For each diagnosed condition, the examiner should answer the following: Is it at least as likely as not (a 50 percent or greater probability) that his shin disability was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his respiratory disorder and sinusitis. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. The examiner should provide diagnoses for the Veteran’s respiratory problems and confirm the diagnosis of sinusitis. It is noted that he does have current diagnoses of asthma and sinusitis. If additional diagnoses are provided, or prior ones ruled out, an explanation should be provided. For each diagnosed disability, the examiner is asked to answer the following: Is it at least as likely as not (a 50 percent or greater probability) that his disability was incurred in, or is otherwise related to, his active service, to include exposure to DS2? The examiner should recognize that separate opinions are expected for each diagnosis. The examiner should consider and discuss the effects of exposure to DS2, which was documented in the Veteran’s STRs. The etiological opinion should not be limited to consideration of that exposure. His entire service must be considered. A complete rationale must be provided for all opinions expressed. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his dermatitis and pseudofolliculitis barbae. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. The examiner should provide a diagnosis for the dermatitis, manifesting in rashes and skin discoloration, and confirm the diagnosis of pseudofolliculitis barbae. If an additional diagnosis is provided, or if one is ruled out, an explanation should be provided. For each diagnosed disability, the examiner is asked to answer the following: Is it at least as likely as not (a 50 percent or greater probability) that his disability was incurred in, or is otherwise related to, his active service, to include exposure to DS2? The examiner should recognize that separate opinions are expected for each diagnosis. The examiner should consider and discuss the effects of exposure to DS2, which was documented in the Veteran’s STRs. The etiological opinion should not be limited to consideration of that exposure. His entire service must be considered. A complete rationale must be provided for all opinions expressed. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his tinnitus. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. The examiner should confirm whether the Veteran has a current diagnosis of tinnitus. If a diagnosis of tinnitus is confirmed, the examiner is asked to answer the following: Is it at least as likely as not (a 50 percent or greater probability) that tinnitus was incurred in, or is otherwise related to, his active service? The examiner should consider the Veteran’s statements and his in-service audiograms conducted in response to noise exposure. A complete rationale must be provided for all opinions expressed. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of his left ankle condition. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. The examiner is asked to provide a diagnosis for the left ankle disability. For each diagnosed disability, the examiner is asked to answer the following: Is it at least as likely as not (a 50 percent or greater probability) that his disability was incurred in, or is otherwise related to, his active service? The examiner should consider the Veteran’s statements and his in-service treatment for left ankle problems. A complete rationale must be provided for all opinions expressed. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel
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