Citation Nr: 18123993 Decision Date: 08/03/18 Archive Date: 08/03/18 DOCKET NO. 15-17 666 DATE: August 3, 2018 ORDER Service connection for degenerative arthritis of the left shoulder is denied. Service connection for degenerative arthritis of the right shoulder is denied. Service connection for trigeminal neuralgia of the left side is denied. Service connection for trigeminal neuralgia of the right side is denied. Service connection for a cervical spine disorder is denied. Service connection for an ear disorder, to include paracusia, cerumen impaction, and chronic ear pain, is denied. A compensable initial rating for chronic constipation is denied. An initial rating in excess of 10 percent for lumbosacral strain is denied. A substantive appeal was not timely filed to a December 2014 rating decision that awarded an initial 10 percent rating for posttraumatic stress disorder (PTSD), and the appeal as to this issue is dismissed. An effective date prior to March 13, 2015, for the grant of service connection for left shoulder strain is denied. An effective date prior to March 13, 2015, for the grant of service connection for right shoulder strain is denied. FINDINGS OF FACT 1. The Veteran served on active duty from June to November 1997 and August 2004 to October 2005. 2. The Veteran was not diagnosed with left or right shoulder degenerative arthritis during the pendency of this appeal. 3. Neither trigeminal neuralgia of the left and right side, nor a neck disorder, were shown in service or are causally or etiologically related to service, including service in the Gulf War. 4. An ear disorder did not clearly and unmistakably exist prior to service nor was it aggravated by service. 5. The Veteran’s gastrointestinal disability has been manifested by subjective complaints of occasional constipation without episodes of bowel disturbance with abdominal distress. 6. The Veteran’s low back disability has been manifested by subjective complaints of minor back pain; objective findings did not demonstrate forward flexion between 30 and 60 degrees, combined range of motion less than 120 degrees, or muscle spasm or guarding as due to lumbosacral strain. 7. In a December 2014 rating decision, the Veteran was awarded an initial 10 percent rating for PTSD. She submitted a timely notice of disagreement (NOD) in April 2015. In May 2015, the Regional Office (RO) mailed a statement of the case (SOC) addressing the initial rating claim; a substantive appeal was not submitted until August 2016. 8. The claim giving rise to the grants of service connection for left and right shoulder strain was received on March 13, 2015; entitlement arose prior to that date. CONCLUSIONS OF LAW 1. Degenerative arthritis of the left shoulder has not been shown. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. Degenerative arthritis of the right shoulder has not been shown. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. Trigeminal neuralgia of the left side was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. Trigeminal neuralgia of the right side was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. A cervical spine disorder was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. An ear disorder, to include paracusia, cerumen impaction, and chronic ear pain, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 7. The criteria for a compensable initial rating for chronic constipation have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (2017). 8. The criteria for an initial rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.114, DC 7319 (2017). 9. The criteria for timely filing a substantive appeal to the December 2014 rating decision have not been met; thus, the request for appellate review of the issue of an increased initial rating for PTSD is dismissed for lack of jurisdiction. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.202, 20.302(b) (2017). 10. The criteria for an effective date prior to March 13, 2015, for the grant of service connection for left shoulder strain have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 11. The criteria for establishing an effective date prior to March 13, 2015, for the grant of service connection for right shoulder strain have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Left and Right Shoulder Arthritis First, the Veteran is seeking service connection for left and right shoulder degenerative arthritis. However, the evidence does not show that she has been diagnosed with, or treated for, these disorders during the pendency of this appeal. Instead, May and October 2015 VA examiners attributed her symptoms to bilateral shoulder strain, disorders for which she is already service-connected. Extensive treatment records do not document separate diagnoses of left or right shoulder arthritis at any time. As the first element of service connection has not been met, further inquiry into the in-service event or nexus elements is rendered moot. The Board has considered the Veteran’s contention that she has bilateral shoulder arthritis; however, she lacks the requisite medical training and expertise to competently diagnose her observable symptoms. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, greater probative value is afforded to the medical evidence, which does not establish the existence of the claimed disorders. As such, the appeals are denied. Left and Right Side Trigeminal Neuralgia First, there is competent evidence of the claimed disorders. The Veteran was diagnosed with left and right trigeminal neuralgia during November 2014 VA examination, and extensive VA treatment records document the same diagnostic history. Accordingly, the first element of service connection—a current disorder—has been met. Next, there is competent and credible evidence of an in-service event. Here, the Veteran contends that her neuralgia is related to her service in the Gulf, which included the handling of chemicals. She has offered competent testimony regarding the nature of her service in Iraq, as supported by a buddy statement from a fellow servicemember who served with her during this time. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The DD-214 further denotes service in Iraq spanning 2004 to 2005, and reflects her in-service specialty as a chemical operations specialist. Accordingly, the second element of service connection has been met. However, the competent medical evidence weighs against the finding of a causal relationship between the Veteran’s neuralgia and her service in the Gulf. To that end, the November 2014 VA examiner opined that no nexus was present in this case, as trigeminal neuralgia was not due to toxin or exposure events incurred while serving in the Gulf. Additionally, the disorders onset in September 2014, several years following her separation from service. The Board affords significant probative value to this opinion, which is based upon the nature and onset of the Veteran’s disorders and her service in the Gulf. There is no indication that the examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact in offering the above conclusion. Moreover, the examiner has the requisite expertise to render a medical opinion regarding the etiology of the Veteran’s neuralgia and had sufficient facts and data on which to base the conclusion. The Board has also considered the Veteran’s lay statements regarding a nexus. However, she is not competent to provide an opinion regarding the etiology of her disorders. See Jandreau, 492 F.3d at 1376-77; see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Instead, the Board has placed greater probative value on the medical evidence in finding no nexus between service and the current left and right side trigeminal neuralgia. Thus, the preponderance of evidence weighs against the claims and the appeals are denied. The Board has considered the Veteran’s contention that the claimed disorders are undiagnosed illnesses, such that presumptive service connection is for application. 38 C.F.R. §§ 3.317. As her symptoms have been attributed to known clinical diagnoses, specifically, the November 2014 examiner related that trigeminal neuralgia is a “diagnosable illnesses with known etiologies,” presumptive service connection is not warranted. Cervical Spine Disorder Turning to the cervical spine appeal, there is competent evidence of the claimed disorder. VA treatment records report a July 2011 MRI indicative of mild to moderate central canal narrowing at level C5-C6. As such, the Veteran was diagnosed with cervical disc herniation C5-C6 during November 2014 VA examination. Accordingly, the first element of service connection has been met. Here, the Veteran contends that her current neck disorder is related to her use of body armor during service in the Gulf. As set forth above, she has established herself as a competent and credible witness regarding her in-service experiences. The claims file also contains a collaborating buddy statement regarding the Veteran’s use of body armor during service, and said use is consistent with the nature of her service in the Gulf. Taken in combination, this is competent and credible evidence of the Veteran’s use of body armor during service, such that the second element of service connection has been met. In offering this conclusion, the Board does not disregard the Veteran’s July 2014 contention that she was also involved in an in-service Humvee accident. However, neither the Veteran’s personnel nor treatment records report her involvement in any such incident during service. Further, the buddy statements of record are not based upon the servicemember’s own observations, but on a narrative provided by the Veteran. Given the complete lack of collaborating evidence to this point, the Board does not find sufficient evidence of an in-service Humvee accident in this case. As such, only the Veteran’s use of body armor is for consideration in assessing the nexus element of service connection. To this point, a November 2014 VA examiner opined that the Veteran’s back disorder was less likely than not incurred in or caused by service. In doing so, the examiner noted that the Veteran did not demonstrate a neck condition during her September 2005 exit examination or during a subsequent 2006 MRI. Instead, the current disorder onset in approximately 2011. As such, the Veteran’s neck disorder would have happened sometime between 2006 and 2011, and not during her period of service. Again, the Board affords significant probative value to this opinion, which assesses the nature of the current disorder and clearly considers the nature of the Veteran’s service and her contentions regarding the etiology of her neck condition. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). Given the probative value of this opinion, coupled with the absence of a positive opinion from the record, the Board concludes that a nexus is not present in this case. Again, the Board has considered the Veteran’s contention that her neck disorder qualifies as an undiagnosed illness, such that presumptive service connection is for application. 38 C.F.R. §§ 3.317. However, the November 2014 examiner indicated that her neck disorder is a diagnosable illness with a known etiology, such that presumptive service connection does not apply. Accordingly, the appeal is hereby denied. Ear Disorder The Veteran contends that an ear disorder preexisted and was aggravated by her service. First, she was diagnosed with paracusia, cerumen impaction, and chronic ear pain by a May 2015 VA examiner. Therefore, an ear disorder has been shown. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of soundness for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence that (a) the disease or injury existed prior to service, and (b) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Here, the Veteran’s March 1997 and August 2004 entrance examinations are silent for reports of a preexisting ear condition. Although her service records note an ear rupture at the age of 2, there is no evidence that this isolated incident evolved into a chronic, and thus preexisting, condition. As such, she was sound when she entered service and the claim is one for service-connection. Service treatment records do not reflected complaints of or treatment for an ear disorder. Moreover, a May 2015 VA examiner noted that paracusia is not caused by noise exposure. Additionally, chronic cerumen impaction has not been shown and there has been no cause for her reported chronic ear pain, as her examination and audiogram were normal. Therefore, the preponderance of the medical evidence weighs against the claim. Increased Rating Claims Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Chronic Constipation The Veteran is currently in receipt of a noncompensable initial rating for her chronic constipation. Under the criteria of DC 7319, a 10 percent rating would be warranted upon evidence of the following: • moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. Review of the record does not indicate that a compensable rating is warranted. A May 2015 VA examiner explicitly denied that the Veteran experienced episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition. Instead, she reported bowel movements every few days as aided by laxatives. No other symptoms were attributed to this disability. This disability picture is supported by extensive VA treatment records spanning the period on appeal, which record the Veteran’s history of chronic and occasional constipation. As such, the evidence does not support a moderate disability picture during the period on appeal or show that the Veteran experiences frequent episodes of bowel disturbance as accompanied by abdominal distress as due to her disability. Instead, she experiences only occasional constipation which is properly treated with the use of laxatives. No additional symptoms or disorders are related to her constipation, which does not appear to impact her ability to function. Accordingly, the disability picture is best embodied in the criteria for a noncompensable rating as currently assigned, and the appeal is denied. Lumbosacral Strain The Veteran is also in receipt of a 10 percent initial rating for lumbosacral strain under DC 5237. For a higher rating to be warranted, there must be evidence of the following: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent). As the record does not contain evidence that the Veteran has intervertebral disc syndrome (IVDS) of the thoracolumbar spine, the Formula for Rating IVDS Based on Incapacitating Episodes does not provide an avenue upon which an increased rating may be awarded. Upon review of the record, an initial rating in excess of 10 percent is not warranted for the Veteran’s lumbosacral strain. During May 2015 VA examination, flexion was reported to 90 degrees and a combined range of motion (referencing the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) to 240 degrees. Further, the examiner explicitly denied symptoms of muscle spasms or guarding. As such, the Veteran reported only minimal functional impairment as due to her disability, in that she had difficulty with bending, stooping, lifting, and running. Such a disability picture is further supported by extensive treatment records, which denote the Veteran’s history of ongoing back pain. Reports of additional symptoms, including pain, weakness, fatigability, or incoordination, are absent from the record. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Veteran’s lumbosacral strain does not meet the criteria for a higher rating, and the appeal is denied. With respect to this appeal, the Board has considered a December 2015 statement from the Veteran that the May 2015 VA examination was inadequate because the examiner indicated that he could not assess the impact of such factors as pain or fatigability without resorting to mere speculation. The Board has reviewed the examination report and finds that the examiner assessed the full scope of factors which could give rise to a higher rating in this case. Moreover, the evidence does not indicate that the Veteran experiences functional impairment due to such symptoms as pain or fatigability. Thus, the examiner’s statement not render the examination inadequate, particularly as the Veteran was provided with the opportunity to provide testimony to this point. Jones v. Shinseki, 23 Vet. App. 382 (2011). Further, regarding both increased rating appeals, the Board has considered the Veteran’s assertion that higher evaluations are warranted. However, as a lay person, she is not competent to assess her symptoms warrant a specific rating under the General Rating Formula. See Jandreau, 492 F.3d at 1376-77; see also Jones, 12 Vet. App. at 385 (1999). Instead, greater probative value is offered to the medical evidence of record in assessing the severity of her disabilities. PTSD The Veteran additionally contends that the issue of an initial rating in excess of 10 percent for PTSD is on appeal. To perfect an appeal to the Board, a substantive appeal must be submitted within 60 days of the date of mailing of the SOC or the remainder the one-year period from the date of mailing of notification of the determination being appealed, whichever period ends later. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). An extension of the 60-day period for filing a substantive appeal may be granted for good cause. A request for such an extension must be in writing and must be made prior to the expiration of the time limit for filing the substantive appeal. The extension request must generally be filed with the VA office from which the claimant received notice of the determination being appealed, unless notice has been received that the applicable records have been transferred to another office. 38 C.F.R. § 20.303. Historically, the Veteran was awarded an initial 10 percent rating for PTSD in December 15, 2014. A timely NOD was received in April 2015. The RO then mailed an SOC to the Veteran on May 21, 2015. Thus, for the appeal to be perfected, the substantive appeal must have been submitted by December 15, 2015 (one year from the date of the rating decision being appealed). However, her substantive appeal was not submitted until August 2016. Review of the record does not indicate that the Veteran requested an extension of the filing period upon demonstrating good cause. However, the record contains an April 2016 letter from the Veteran’s representative which indicates that she was not provided with a copy of her SOC. The evidence does not support this assertion. The May 2015 SOC was mailed to the Veteran’s current address of record, and there is no indication that it was returned as undeliverable. Mindenhall v. Brown, 7 Vet. App. 271 (1994). An additional copy was also provided to the Veteran’s then-representative. Although she appointed a new representative shortly thereafter, a complete copy of her claims file was provided to the new attorney on May 26, 2015. Thus, the new representative was in constructive receipt of the SOC with sufficient time for a timely substantive appeal or extension request to be submitted. Although the Veteran is competent to report not receiving the May 2015 SOC, her lay statement alone is not sufficient evidence to rebut the presumption that the SOC was properly mailed to her. Instead, the additional evidence of record establishes that she was in receipt of the SOC with sufficient time to submit a timely appeal. In this respect, the letter accompanying the May 2015 SOC informed the Veteran of her rights and obligations regarding the submission of a substantive appeal, and enclosed a blank VA Form 9 for her use. While timely receipt of a substantive appeal is not a jurisdictional prerequisite, in the Veteran’s case, there has been no explicit or implicit representation by VA, either by the RO or the Board, that it was waiving the filing requirement of a timely substantive appeal. Percy v. Shinseki, 23 Vet. App. 37 (2009). Instead, a September 2016 letter informed her that her appeal was not timely and was therefore not accepted. No further adjudicatory actions have been taken with respect to this claim. Id. (holding that an issue can be on appeal if VA has implicitly or explicitly treated it as on appeal and the appellant might have reason to believe it was on appeal). The law is clear that a substantive appeal must be filed with the agency of jurisdiction within the appropriate time frame. The Board is bound by the laws and regulations governing the appellate process. For the foregoing reasons, a timely substantive appeal was not filed following the December 2014 rating decision awarding an initial 10 percent rating for PTSD, and the appeal is thus denied. Earlier Effective Dates The assignment of effective dates is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. If a claim is received within one year of a veteran’s separation from service, the effective date will be the date of separation from active duty or the date that entitlement arose. Otherwise, the effective date for an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date that entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As to the date of receipt of the claim, the currently-assigned effective date of March 13, 2015, corresponds to the date of receipt of the initial claim for service connection for a bilateral shoulder disorder, which was later granted as left and right shoulder strain. This claim was received more than one year after the Veteran’s separation from service. As to the date entitlement arose, the Veteran has testified that her symptoms began following a series of in-service incidents, and an October 2015 VA examiner recorded an onset date of October 2006. As the effective date will be the later of the date of the receipt of the claim (March 2015) or the date entitlement arose (October 2006), an effective date prior to March 13, 2015, is not warranted, as this corresponds to the date that the Veteran’s claim was received by VA and is the later of the two relevant dates. As such, the appeals are denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel
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
VAClaims.org ~ A Non-Profit Non Governmental Agency 