Citation Nr: 18132268
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-45 219
DATE:	September 6, 2018
ORDER
An initial rating in excess of 30 percent for a psychiatric disability, characterized as PTSD, is denied.
Service connection for a neck disability is granted.
Service connection for a left knee disability is denied.
Service connection for tinea pedis is denied.
Service connection for alopecia areata is denied.
REMANDED
Entitlement to service connection for sleep apnea is remanded.
Entitlement to service connection for hypertension is remanded.
FINDINGS OF FACT
1. During the period on appeal, the Veteran’s psychiatric symptoms have been characterized by such symptoms as depression, anxiety, depression, irritability, sleep impairments, nightmares, exaggerated startle response, and hypervigilance.  Moreover, occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment or impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships, have not been shown.
2. The Veteran’s neck disability is related to active duty service.
3. The Veteran’s left knee disability was not shown in service or for many years thereafter, and is not otherwise related to active duty service.
4. The Veteran’s tinea pedis was not shown in service or for many years thereafter, and is not otherwise related to active duty service.
5. The Veteran’s alopecia areata was not shown in service or for many years thereafter, and is not otherwise related to active duty service.
CONCLUSIONS OF LAW
1. The criteria for an initial disability rating in excess of 30 percent for an acquired psychiatric disorder, characterized as PTSD, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411.
2. The criteria for service connection for a neck disorder are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309.
3. The criteria for service connection for a left knee disorder are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309.
4. The criteria for service connection for tinea pedis are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309.
5. The criteria for service connection for alopecia areata are not met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January to July 1989, from October 1990 to May 1991, from March to August 1992, from February to May 2003, and from March 2008 to April 2009.  
The Board also notes that although the Veteran was provided with VA examinations that discussed, at least in part, his tinea pedis and alopecia areata, it does not appear that the RO requested that the VA examiners provide etiological opinions for these disorders on a direct basis.  Therefore, to the extent the VA examiners were not requested to provide etiological opinions on a direct basis, these examinations were not inadequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Moreover, the Board finds that given the absence of in-service evidence of chronic manifestations of these disorders, and no evidence of these disorders until many years after service, a VA examination is not warranted for these disorders.  38 C.F.R. § 4.2; cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr, 21 Vet. App. 303 (2007).  As such, there is no prejudice to the Veteran in proceeding with the adjudication of the claims and the available records and medical evidence are indeed sufficient to make an adequate determination as to these claims.  See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015).  
Increased Ratings
1. Entitlement to an initial rating in excess of 30 percent for a psychiatric disability
The Veteran is seeking an increased rating for his service-connected psychiatric disorder.
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  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.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). 
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.
In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability.  Fenderson v. West, 12 Vet. App. 119 (1999).  Further, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods.  See Hart v. Mansfield, 21 Vet. App. 505 (2007). 
Throughout the period on appeal, the Veteran has been assigned a 30 percent rating for an acquired psychiatric disorder, characterized as PTSD, under 38 C.F.R. § 4.130, Diagnostic Code 9411.  For the next-higher 50 percent rating, the evidence must show occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment or impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships.
Based on the evidence of record, a rating in excess of 30 percent is not warranted.  Indeed, although the Veteran has occasional symptoms that could support a higher rating, the Veteran’s symptoms do not on balance cause occupational and social impairment with reduced reliability and productivity due to these symptoms.  Moreover, the Veteran’s objectively observable symptoms do not manifest as impaired judgment or impaired abstract thinking, stereotyped speech, difficulty in understanding complex tasks, or impairment of memory to a level that a 50 percent rating would be warranted.  
Specifically, in a December 2013 treatment evaluation, the Veteran displayed many symptoms consistent with a 30 percent rating, such as depression, anxiety, sleep impairment, hypervigilance, and mild memory loss.  He was appropriately dressed, “pleasant, calm, cooperative,” and alert/oriented in all spheres.  His speech and thought process were normal with “good” insight and judgment.  Although the Veteran did display a “blunted” affect, there was no evidence of a thought disorder, psychosis, suicidal ideations, significant memory impairment, or panic attacks.  
Further, the Board observes that the Veteran’s March 2014 treatment records reflect that the Veteran’s overall psychiatric symptoms improved slightly, or at the very least, remained consistent with a 30 percent rating.  Of note, the Veteran was pleasant and calm, and endorsed “no depression.”  Moreover, while he continued to have a “blunted affect,” he speech and thought process were normal with no deficits with his memory.   
This Veteran’s symptoms continued to be relatively consistent with a 30 percent rating in May 2014, where at VA examination he presented with symptoms of anxiety, chronic sleep impairment, and mild memory loss.  The Board observes that while the Veteran had a “somewhat blunted” affect, there was nevertheless no evidence of abnormal speech or thought process, impaired judgment, difficulty understanding complex commands, impaired memory, disturbances in motivation or mood, or difficulties in establishing effective work and social relationships.  As such, the examiner opined that the Veteran’s psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  
Therefore, in view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 30 percent.  Of note, although the Veteran may exhibit some symptoms of a higher rating, including blunted/flattened affect, a holistic review of the Veteran’s symptoms, such as normal speech, thought process, judgment, and insight, without any signs of panic attacks, significant memory impairment, a psychosis, suicidal ideations, or thought disorder, demonstrate that his symptoms are better categorized by the 30 percent rating he currently receives.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115-17 (Fed. Cir. 2013).  Indeed, some of the symptoms listed in the diagnostic code for a higher rating have not been shown at all.  
Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment.  Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002).  As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause social impairment with reduced reliability and productivity.
In this regard, it is clear that the Veteran’s disorder reflects some impact on his social and occupational functioning.  Nevertheless, the evidence does not indicate that a rating in excess of 30 percent is warranted.  Specifically, as reflected in the medical evidence, including the December 2013 treatment evaluation and May 2014 VA examination, the Veteran is married and lives with his two children.  Further, while he reported “marital stress” and “lots of arguments” with his wife, he nevertheless appears to have a close relationship with his children, aunts, cousins, and mother.  Moreover, although he indicated that he does not have friends or likes to be around people, he stated that he enjoys spending time with his family and fishing.  Additionally, while the Veteran previously worked for the government the past “15-16 years” and is currently unemployed, there is not sufficient evidence to demonstrate that his psychiatric disorder causes occupational impairment to warrant a higher rating.  Therefore, his level of social and occupational impairment does not cause reduced reliability and productivity even when factoring in other relevant criteria outside of the rating code.  See Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002).  
In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his service-connected psychiatric disorder is worse than the ratings he currently receives.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.  Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability and ankle disorder according to the appropriate diagnostic codes.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  
On the other hand, such competent evidence concerning the nature and extent of the Veteran’s acquired psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.  Specifically, while the Veteran reported that he had irritability, memory impairment, and sleep difficulties, these symptoms were discussed and addressed by the VA examiners and treating medical providers.
The Board also acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  In this regard, the Veteran does not allege that he has been unable to work as a result of his service-connected psychiatric disability during the period on appeal.  Therefore, the Board finds that the question of entitlement to TDIU has not been raised by the record.  See Rice, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
Service Connection
2. Entitlement to service connection for a neck disorder
The Veteran asserts that his neck disorder had its onset during service, or was otherwise etiologically related to service, to include as secondary to and/or aggravated by his service-connected back disorder.  
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not etiologically related to, including aggravated by, an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.306, 3.307, 3.309.
Based on the evidence of record, the Board determines that service connection is warranted for the Veteran’s neck disorder.  
In this case, the Board takes note of the fact that the Veteran was diagnosed as having a herniated cervical disc and cervical disc disease within a few months after separation from service in April 2009.  Further, the Veteran’s post-service medical treatment records, including from March 2014, reflect that the Veteran continues to experience cervical pain and related symptoms.  As such, the evidence is at least in equipoise that the Veteran’s neck disability had its onset in, and/or is related to active service.  See 38 C.F.R. § 3.307(a)(3).  
Therefore, in resolving all doubt in the Veteran’s favor, the weight of the medical evidence is at least in equipoise that the Veteran has a neck disability that is etiologically related to active service.  As such, service connection is warranted.  
3. Entitlement to service connection for a left knee disorder
4. Entitlement to service connection for tinea pedis
5. Entitlement to service connection for alopecia areata 
The Veteran asserts that his left knee disorder, tinea pedis, and alopecia areata are related to active duty service.  Specifically, he claims his left knee disorder is related to a sprain he sustained in 1990.  Further, he contends that his tinea pedis and alopecia areata are secondary to his service during the Gulf War.  
After a review of the evidence, the Board concludes that although the Veteran has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that these disorders began during service or are otherwise etiologically related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309, 3.317.  
As an initial matter, to the extent the Veteran asserts, or the record suggests that the Veteran was exposed to toxic substances or environmental hazards while serving in the Gulf War, there is insufficient evidence to concede that the Veteran was actually exposed to toxic substances or environmental hazards during service.  
However, in the absence of actual exposure, service connection may nevertheless be warranted on a presumptive basis for veterans with service in the Southwest Asia theater of operations for objective indications of a “qualifying chronic disability” that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities that warrant a presumption of service-connection: 
(1)	An undiagnosed illness; 
(2)	A medically unexplained chronic multisymptom illness; or 
(3)	A diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d).
In this case, presumptive service connection for these disorders under 38 C.F.R. § 3.317 is not for application as the Board does not consider the Veteran’s complaints and disorders on appeal to collectively (or individually) represent an undiagnosed illness.  Specifically, the July 2012 and May 2014 VA examiners opined that the Veteran’s claimed disorders on appeal were all due to diagnosed conditions, including left knee strain, tinea pedis, and alopecia areata with clear etiologies, as discussed below.  Additionally, the Board determines that given the diagnosis of tinea pedis and alopecia areata, the symptoms related to these disorders are not due to an “undiagnosed,” “unexplainable,” and/or considered to be a separate “chronic multisymptom illness” for which service connected can be granted on a presumptive basis under 38 C.F.R. § 3.317.  
Next, while the Veteran’s service treatment records reflect a left knee sprain during service, the records do not report continuing complaints, symptoms, or a diagnosis of a chronic knee disorder.  Similarly, the service treatment records are silent for any signs, symptoms, complaints, or diagnosis related to tinea pedis and alopecia areata.  Further, while the post-service medical evidence includes the Veteran’s report of symptoms since service, the objective medical evidence does not reflect symptoms of alopecia areata until 2007, and a left knee disorder and tinea pedis until approximately 2011, respectively.  Therefore, continuity of symptoms has not been shown based on the clinical evidence, to include the chronic disease presumption under 38 C.F.R. § 3.307(a)(3).  
The Board recognizes the statements from the Veteran regarding his history of these disorders since service.  While the Veteran is competent to report that he experienced symptoms related to these disorders since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorder.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless insufficient by itself to support a relationship between his disorders and active service.  As an initial matter, the large gap in treatment for his disorders weigh against the Veteran’s claims.  Further, the Veteran’s history of these disorders is inconsistent with his January 2003 reserves service treatment records and April 2008 in-service examination.  
Although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorders on appeal, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions.  
Here, the competent evidence fails to establish a relationship between active duty and the Veteran’s current symptoms.  In this regard, the Board places significant probative value on the opinions from the July 2012 VA examiner that performed a detailed review of the Veteran’s service and medical treatment records.  Specifically, she determined that to the extent the Veteran sustained a knee injury in 1990, his current knee condition is not related to that injury given the nature and severity of his “isolated minor” knee injury.  Further, the examiner also stated that while the Veteran reported intermittent left knee pain since an in-service injury in 1990, the medical records do not support his assertions and/or sufficiently evidence a chronic knee condition.  In support, she noted that the Veteran served several tours of duty since 1990, and his service and post-service medical treatment records do not indicate any complaints until approximately 2011.   
With respect to the Veteran’s tinea pedis and alopecia areata, the May 2014 VA examiner opined that these conditions are not related to his service during the Gulf War.  Instead, based upon the medical research, tinea pedis is typically caused by exposure to moist communal areas where people walk barefoot, such as showers.  Further, the examiner opined that the Veteran’s alopecia areata was not related to his service in the Gulf War, but instead caused by caused by “an abnormality in the immune system” due to “hereditary genetics and immune issues/allergies.”  The examiner also noted that the onset of these symptoms occurred many years after service.  As such, there is not sufficient evidence demonstrating a relationship between these disorders and service.  
Additionally, the Board notes that even if it concedes that the Veteran was exposed to certain hazardous environmental substances, the Veteran has not provided sufficient evidence, including a medical opinion, to demonstrate a relationship between his disorders and active service, to include exposure to toxic substances during the Gulf War.  
Lastly, as part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his disorders and active service.  Nevertheless, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case.  As discussed, these issues are medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency.
In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for a left knee disorder, tinea pedis, and alopecia areata, and there is no doubt to be otherwise resolved.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, the appeal is denied.  
REASONS FOR REMAND
1. Entitlement to service connection for sleep apnea is remanded.
2. Entitlement to service connection for hypertension is remanded.
The Veteran asserts that his sleep apnea and hypertension are related to active service, to include as secondary to and/or aggravated by each other.  In this case, the medical evidence, including the March 2011 VA treatment records, indicate the Veteran’s sleep apnea may have had its onset during service, or may otherwise be related to service.  With regard to hypertension, the records indicate the Veteran’s hypertension may have permanently worsened after his final tour of duty.  Additionally, the May 2011 VA treatment records notes a potential relationship between the Veteran’s hypertension and sleep apnea.  Therefore, a VA examination to determine the nature, severity, and etiology of these disorder is warranted.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The matters are REMANDED for the following action:
1. Obtain all treatment records that are available from the VA Medical Center in Goose Creek, South Carolina, as well as from any VA facility from which the Veteran has received treatment since October 2015.
If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment 
2. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea and hypertension.  The claims file must be reviewed, including the new records and such review should be noted in the opinion.
The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that his currently diagnosed sleep apnea or hypertension, respectively, had its onset during, or is otherwise etiologically related to the Veteran’s period of service, to include as secondary to and/or aggravated by (i.e., worsened) his service-connected disabilities.  

 
James L. March
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Meyer, Associate Counsel 

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