Citation Nr: 18160414
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-10 940A
DATE:	December 26, 2018
ORDER
Service connection for a vision disorder is denied.
Service connection for an intestinal disorder, to include gastroenteritis, acid reflux, and dysentery, to include as secondary to exposure to contaminated water at Camp Lejeune, is denied.
Service connection for high cholesterol is denied.
Service connection for hypertension is denied.
Service connection for an abdominal aortic aneurysm is denied.
Service connection for skin cancer is denied.
Service connection for a stroke, to include an ischemic stroke, is denied.
From January 24, 2011 and thereafter, a disability rating of 70 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety is granted.
A disability rating greater than 10 percent for tinnitus is denied.
A compensable disability rating for malaria, to include residuals of malaria, is denied.
A compensable disability rating for hearing loss of the right ear is denied.
A total rating based on individual unemployability is granted. 
REMANDED
The issue of service connection for hearing loss of the left ear is remanded.
The issue of service connection for a kidney disorder is remanded.
The issue of service connection for a renal cyst is remanded.
The issue of service connection for a back disorder is remanded.
FINDINGS OF FACT
1. The Veteran does not have vision disorder that is attributable to a disease or injury sustained during his period of service.
2.  The Veteran does not have an intestinal disorder, to include as secondary to exposure to contaminated water at Camp Lejeune, that is related to his active duty service.
3. High cholesterol is a laboratory finding and not a disease or disability under VA law and regulations.
4. The Veteran’s hypertension is not related to his active duty service.
5. The Veteran’s abdominal aortic aneurysm is not related to his active duty service.
6. The competent evidence does not reflect a diagnosis of skin cancer during the appeal period.
7. The competent evidence does not reflect a diagnosis of a stroke during the appeal period. 
8. With the benefit of the doubt accorded to the Veteran, throughout the rating period, the Veteran’s acquired psychiatric disorder is characterized by occupational and social impairment with deficiencies in most areas, near-constant depression, suspiciousness, chronic sleep deprivation and inability in adapting to stressful circumstances including during employment.
9. The Veteran’s tinnitus symptoms do not present an exceptional disability picture such that the schedular rating for tinnitus is inadequate.
10. The Veteran’s malaria is not active and he does not have any residuals thereof.
11. The Veteran’s right ear hearing loss is characterized by an average decibel loss of 71 and speech recognition score of 74 percent.
12. The Veteran’s service-connected disorders prevent him from securing or following a substantially gainful occupation.
CONCLUSIONS OF LAW
1. The criteria to establish service connection for a vision disorder have not been met.  38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
2.  The criteria for service connection for an intestinal disorder, to include as secondary to exposure to contaminated water at Camp Lejeune, have not been met.  38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
3. The criteria for service connection for high cholesterol are not met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017).
4. The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310(a) (2017).
5. The criteria for service connection for an abdominal aortic aneurysm have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
6. The criteria for entitlement to service connection for skin cancer have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
7. The criteria to establish service connection for a stroke, to include an ischemic stroke, have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
8. Effective January 24, 2011 and thereafter, the criteria for a rating of 70 percent for an acquired psychiatric disorder, to include PTSD, have not been approximated.  38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411 (2017).
9. The criteria for a rating greater than 10 percent for tinnitus have not been met.  38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.87, Diagnostic Code 6260 (2017).
10. The criteria for a compensable disability rating for malaria, to include residuals of malaria, have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, Diagnostic Code 6304 (2017).
11. The criteria for a compensable disability rating for right ear hearing loss have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, Diagnostic Code 6100 (2017).
12. The criteria for a TDIU have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran was honorably discharged from active duty service for his service from August 1968 to October 1972, including service in the Republic of Vietnam from September 6, 1969, to August 20, 1970. He is the recipient of the Combat Action Ribbon. The Veteran served at Camp Lejeune from November 6, 1968, to August 30, 1969; and September 30, 1970, to November 6, 1970.  
The Veteran was discharged from active duty service under conditions other than honorable for his service from October 1972 to June 1975.  
This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2013, March 2013, June 2016 and September 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a).  Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, in a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and/or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7).  Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to establish presumptive service connection for veterans described above who have been diagnosed with any of the following eight disabilities: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease.  The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date.
Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2017).  With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 
In deciding an 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.  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.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 
When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. at 469.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  See Barr, 21 Vet. App. at 303.  Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  See Jandreau, 492 F.3d at 1377.  The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  
1. Vision disorder
The Veteran contends that he has a vision disorder that is a result of active duty service.  His contentions are not specific and there is no evidence as to what symptoms he experiences.  
To the extent that the Veteran has refractive error in his eyes, regulations establish that a refractive error of the eye is not a disease or injury for compensation purposes.  38 C.F.R. § 3.303 (2017). 
The Veteran is not competent to establish that his purported vision disorder had onset because of service, nor is he competent to offer opinion as to etiology of any vision disorder.  The question regarding the diagnosis or etiology of vision disorder disability is a complex medical issue that cannot to be addressed by a layperson.  In that regard, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
The claim of entitlement to service connection for a vision disorder must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
2. An intestinal disorder
The Veteran contends that he has an intestinal disorder, to include as secondary to exposure to contaminated water at Camp Lejeune.
In July 2005, VA denied the Veteran’s claim for service connection for intestinal symptoms and that decision became final.  Subsequently, the Veteran submitted a petition to reopen the claim stating that his intestinal disorder was due to exposure to contaminated water at Camp Lejeune.  The RO de facto granted the petition by scheduling the Veteran for a VA examination and denied the claim for service connection on the merits of the claim in March 2013. 
Service treatment records reflect that the Veteran was treated for gastroenteritis in May 1970. Military medical care providers noted that the Veteran had “total resolution of symptoms within 24-48 hours.” He was returned to duty as the symptoms had “resolved.”
In June 1992, the Veteran was examined at the Medical College of Georgia Hospital and Clinics.  The Veteran complained of abdominal pain and reported a history of abdominal surgery in 1980 to have his “bowel scraped.”  See June 1992 Private Medical Treatment Records.  Although he was admitted to the hospital, he was discharged when the partial small bowel obstruction resolved.     
In October 2000, the Veteran was seen at his private medical facility for abdominal pain.  The Veteran reported a history of intestinal blockages.  He was prescribed Prilosec and Diovan.  He was also assigned a diagnosis of gastroesophageal reflux disease (GERD).
The record reflects the Veteran was stationed at Camp Lejeune during active service from November 6, 1968, to August 30, 1969, and September 30, 1970, to November 6, 1970.  Therefore, the Board finds the Veteran met the threshold duration of service during the applicable time period required under 38 C.F.R. § 3.307(a)(7)(iii).
However, an intestinal disorder is not considered to be associated with exposure to contaminated water at Camp Lejeune under 38 C.F.R. § 3.309(f).  Therefore, the Veteran’s purported intestinal disorder shall not be granted on a presumptive basis for certain diseases associated with exposure to contaminants.
While service connection for an intestinal disorder cannot be granted on a presumptive basis, the Board has also considered the Veteran’s claim on a direct basis.  
The VA provided the Veteran an opportunity to be medically examined in January 2013; however, the Veteran did not attend the VA examination.  A medical nexus linking the Veteran’s current diagnosis to his active duty service is necessary.  The evidence is silent for any such opinion.  To the extent that the Veteran has a currently-diagnosed intestinal disorder, the evidence does not show a link between such a disorder and the Veteran’s active duty service.  
Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his purported intestinal disorder, the Board finds that the intestinal disorder is not etiologically related to service.  See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits.”); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).
Accordingly, service connection for an intestinal disorder is denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56.
3. High cholesterol
The evidence of record, including VA treatment records, demonstrates findings of high cholesterol in laboratory reports.  However, diagnoses of elevated cholesterol are laboratory results and are not, in and of themselves, disabilities for compensation purposes.  See Schedule for Rating Disabilities: Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996).  The term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2017).  The evidence does not show nor has the Veteran contended that his high cholesterol, a laboratory finding, is a manifestation of an underlying disease that causes impairment in earning capacity.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
4. Hypertension 
“Hypertension” refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic as reflective of hypertension.  See Dorland’s Illustrated Medical Dictionary, 896 (32nd ed. 2012).  Similarly, for VA rating purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm Hg or greater.  The term “isolated systolic hypertension” means that the systolic blood pressure is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).  For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  Id. 
Hypertension, as a cardiovascular-renal disease, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a).  Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 
The Veteran’s service treatment records are silent for symptoms, treatment, or a diagnosis of hypertension.
The Veteran’s private medical records from Miller County Hospital demonstrated a diagnosis of hypertension in May 2005.  In August 2015, the Veteran was diagnosed with benign essential hypertension.  The evidence is silent as to a nexus between the Veteran’s diagnosis of hypertension and his active duty service.
While the Veteran has a current diagnosis of hypertension, the preponderance of the evidence is against the Veteran’s claim.
The absence of such in-service and post-service findings is one factor that tends to weigh against a finding that the hypertension began during service.  See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 
The Veteran is not competent to offer opinions as to the etiology of hypertension due to the medical complexity of the matter involved.  Hypertension requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology.  Thus, the Veteran is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and service.  See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).
As the preponderance of the evidence demonstrates that the Veteran did not experience chronic symptoms of hypertension in service, continuous symptoms since service, or compensable manifestations within one year of service separation, presumptive service connection for hypertension may not be established.  See 38 C.F.R. §§ 3.303, 3.307, 3.309.
Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his hypertension, the Board finds that the hypertension is not etiologically related to service.  See 38 U.S.C. § 5107(a); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009); Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).
Accordingly, service connection for hypertension is denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56.


5. An abdominal aortic aneurysm

The Veteran contends that he has an abdominal aortic aneurysm that is related to his active duty service.  
The Veteran’s service treatment records are silent for symptoms, treatment, or a diagnosis of an abdominal aortic aneurysm.
In August 2004, (approximately 40 years after service discharge), the Veteran was admitted to the Miller County Hospital for abdominal pain and vomiting.  Radiology results indicated scattered air fluid levels with dilated loop of the small bowel.  There was some stool and gas seen along the course of the colon.  There were no soft tissue masses identified.  The treating physician opined that an early or partial mechanical obstruction could not be excluded and follow-up care should be considered.  He was subsequently diagnosed with an abdominal aortic aneurysm.
In May 2005, the Veteran was treated by the Miller County Hospital. Examiners noted that the Veteran had “numerous risk factors” and elevated cholesterol. It was noted that he was “still a smoker.” In October 2005, the Veteran was again examined at the Miller County Hospital.  Abdominal imaging demonstrated a four-centimeter abdominal aortic aneurysm.   Atherosclerotic changes were noted on the abdominal aorta with ectasia and probable aneurysm distally.  The aorta measured slightly greater than 4 centimeters in the AP diameter and there was some clot and grumous material present.  There was no evidence of leakage.  The aneurysm arose beyond the take-off of the renal arteries and did not extend into the iliac arteries. 
In April 2007, the Veteran was examined at Memorial Hospital and Manor.  Imaging results showed an infrarenal fusiform abdominal aortic aneurysm measuring up to 5.0 by 4.2 centimeters in diameter.  The circumferential mural thrombus measured up to 8 millimeters in thickness.  There was also moderate atherosclerotic calcification in the abdominal aortic wall.  The abdominal aorta was ectatic and measured 3.3 centimeters in diameter.  The renal arteries were patent bilaterally.
VA treatment records show that in 2008, the Veteran underwent abdominal aortic aneurysm surgery, and his condition has been monitored since that time.  Most recently, in August 2017, the Veteran’s treating physician reported that the abdominal aortic aneurysm was 3.7 centimeters.  
While the Veteran has a current diagnosis of an abdominal aortic aneurysm, the preponderance of the evidence is against the Veteran’s claim.
The evidence is silent for a diagnosis of an abdominal aortic aneurysm until approximately forty years after active duty service.  The absence of in-service and post-service findings is one factor that tends to weigh against a finding that the Veteran’s abdominal aortic aneurysm began during service.  See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  
There is also no evidence linking the Veteran’s abdominal aortic aneurysm to his active duty service.  The Veteran is not competent to offer opinions as to the etiology of an abdominal aortic aneurysm due to the medical complexity of the matter involved.  An abdominal aortic aneurysm requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible to lay opinions on etiology.  Thus, the Veteran is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and service.  See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).
Absent competent, credible, and probative evidence of a nexus between the Veteran’s service and his abdominal aortic aneurysm, the Board finds that the abdominal aortic aneurysm is not etiologically related to service.  See 38 U.S.C. § 5107(a); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009); Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).
Service connection for an abdominal aortic aneurysm is denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56.
7. Skin cancer
The Veteran contends that he has skin cancer as a result of his active duty service, to include his exposure to contaminated water at Camp Lejeune and exposure to herbicide agents in the Republic of Vietnam.  
The evidence is silent for any diagnosis, symptoms, or treatment of skin cancer, to include basal cell skin cancer.
In May 2011, the Veteran underwent a VA dermatological evaluation as part of a peripheral nerves examination. The medical examiner noted the Veteran’s October 2003 report that he had basal cell carcinoma on his left nose and right cheek which had been excised without recurrence. The examiner evaluated the Veteran to determine if he had skin cancer, among other skin disorders. The examiner reported that there were no active lesions consistent with skin cancer but a non-disfiguring, well-healed scar was noted on the Veteran’s left nose. The sole diagnosis was non-melanoma skin cancer, status-post excision, without recurrences. 
In August 2017, the Veteran underwent a VA examination.  The examiner noted that there were no skin biopsy pathology reports confirming the claim of basal cell skin cancers and that there was only the Veteran’s reported history of previous skin cancer.  As to the Veteran’s assertion of his skin disorder being caused by contaminants at Camp Lejeune, the examiner concluded that there was no evidence to show that the Veteran had skin cancer, and citing medical research, he concluded that there is no known association between basal cell skin cancer and solvent exposure.  The examiner opined that, to the extent the Veteran had basal cell skin cancer, the Veteran’s skin cancer was not caused by or the result of the Veteran’s exposure to contaminated water at Camp Lejeune. 
The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., skin cancer.  See 38 U.S.C. § 1110.  The record does not include any such evidence.  Treatment records associated with the record do not show a diagnosis of or treatment for skin cancer, and the Veteran has not identified any physician who diagnosed him with, or treats him for such a disability.  Accordingly, there is no valid claim of service connection for skin cancer.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).   
Therefore, the Board finds that the preponderance of the evidence is against the claim of service connection for skin cancer and the claim is denied.  The Board has considered the doctrine of reasonable doubt; as the preponderance of the evidence is against the claim, the doctrine does not apply.
8. Stroke
The Veteran contends that he had a stroke, to include an ischemic stroke, that was incurred in, or caused by, his service.  
The Veteran’s service treatment records are silent for complaints, findings, treatment or diagnosis of a stroke.  Post-service evidence, to include VA treatment records and private medical records, are silent for a diagnosis or treatment of a stroke.
The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., a stroke.  See 38 U.S.C. § 1110.  The record does not include any such evidence.  Treatment records associated with the record do not show a diagnosis of or treatment for a stroke, and the Veteran has not identified any physician who diagnosed him with, or treats him for such a disability.  Accordingly, there is no valid claim of service connection for a stroke.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).   
Therefore, the Board finds that the preponderance of the evidence is against the claim of service connection for a stroke.  Accordingly, it must be denied.  The Board has considered the doctrine of reasonable doubt; as the preponderance of the evidence is against the claim, the doctrine does not apply.
Increased Rating
Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule For Rating Disabilities.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017).  
In determining the adequacy of assigned disability ratings, consideration is also given to factors affecting functional loss.  38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995).  Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use, including that experienced during flare ups. 38 C.F.R. § 4.40.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis).  Pain that does not result in additional functional loss does not warrant a higher rating.  See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). 
That said, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability.  Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  Id.
Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7. 
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided.  Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 
9. An acquired psychiatric disorder
The Veteran is currently rated at 50 percent for an acquired psychiatric disorder, to include PTSD and anxiety. 
A 50 percent evaluation requires 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 
A 70 percent evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), and an inability to establish and maintain effective relationships. 
A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 
The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.
Pursuant to 38 C.F.R. § 4.125(a), a diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association (2013).
In May 2011, the Veteran underwent a VA examination for PTSD.  Although the examiner declined to diagnosis him with PTSD, he was assigned a diagnosis of anxiety.  From May 2011 to April 2017, the VA treatment records are silent for treatment of an acquired psychiatric disorder, although private treatment records contain notations of depression.
In April 2017, the Veteran underwent a VA examination for a mental disorder and PTSD.  The examiner concluded that the Veteran experienced occupational and social impairment with reduced reliability and productivity.  The Veteran stated that he experienced decreased energy, even when he slept seven hours per night.  He did not experience suicidal or homicidal ideation, or panic attacks except in big crowds.  He stated he had some obsessive-compulsive behaviors (i.e., adding letters to words that he sees on television) and that he had fair impulse control.  The examiner noted that the Veteran had been married three times, with his current marriage lasting 31 years.  The Veteran reported limited activity and social relationships due to anxiety and PTSD symptoms and that, except for his spouse, he avoids people.  The examiner noted that the Veteran experienced anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting.  
However, in March 2018, the Veteran underwent a mental disorders examination conducted by a non-VA psychologist. With use of VA’s “Disability Benefits Questionnaire,” she found that the Veteran had mental impairment in “most areas.” She noted that although the Veteran had been married for approximately 20 years, he was socially isolated and “withdrawn.” She noted that the Veteran had difficulty concentrating, and among his symptoms were a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, and suicidal ideation – also noted as a “persistent danger of hurting self or others.”
The Veteran is competent to report mental symptoms because such requires only personal knowledge as it comes to him through his senses.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).
The Board will grant the benefit of the doubt to the Veteran and assign a 70 percent rating for the entirety of the rating period. 
Tinnitus
Diagnostic code 6260 provides for a 10 percent rating for recurrent tinnitus.  38 C.F.R. § 4.87, Diagnostic code 6260 (2017).  There are 3 notes relevant to diagnostic code 6260.  Note 1 states that a separate evaluation for tinnitus may be combined with an evaluation under diagnostic does 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes.  Note 2 states that only a single evaluation is to be assigned for recurrent tinnitus, regardless of whether the sound is perceived in one ear, both ears, or in the head.  Note 3 states that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) is not to be rated under this diagnostic code but instead should be evaluated as part of any underlying condition causing it.  38 C.F.R. § 4.87, Diagnostic code 6260.
The Veteran has been in receipt of a 10 percent rating for tinnitus since January 24, 2011.  This is the maximum schedular rating available for this disorder.  See 38 C.F.R. § 4.87, Diagnostic Code 6260.
In an exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability.  The governing norm in exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2017).
There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  Second, if the schedular ratings do not contemplate a Veteran’s level of disability and symptomatology and are found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as governing norms.  Third, if the rating schedule is inadequate to rate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating.  Thun v. Peake, 22 Vet. App. 111 (2008).
In May 2011 and April 2017, the Veteran was afforded VA audiological examinations.  In May 2011, he reported daily, mild humming that lasted two to three minutes.  In April 2017, he reported constant bilateral tinnitus that was worse when it was quiet.  
The Board finds that the evidence does not present such an exceptional disability picture that the schedular rating for tinnitus is inadequate. The Veteran has reported only that he has constant bilateral tinnitus. He has not reported specific interferences with his daily life because of the tinnitus and he has not reported any unusual symptoms or manifestations of the tinnitus.  Because the Veteran’s symptoms are contemplated by diagnostic code 6260, an extraschedular rating is not warranted and referral to Under Secretary for Benefits or the Director of the Compensation and Pension Service is not necessary.  The claim is denied.
10. Malaria
The Veteran is in receipt of a noncompensable rating for malaria.
Under Diagnostic Code 6304 for malaria, a noncompensable disability rating is warranted when the malaria is inactive.  A 100 percent rating is warranted when the malaria is active.  If there are residuals, such as liver or spleen damage, they are to be rated under the appropriate system.  
The evidence is silent for any symptoms or residuals of malaria since 1971.
In May 2017, the Veteran underwent a VA examination for malaria.  The Veteran reported that although he had significant health issues in 1969 to 1971 for malaria, he has not had any more problems or relapsed since 1971.  The examiner concluded that the malaria is inactive and that the Veteran did not experience any symptoms or residuals.  
Here, the evidence demonstrates that the Veteran’s malaria is inactive.  Therefore, a noncompensable rating is warranted and the claim for an increased rating must be denied.  
11. Right ear hearing loss
The Veteran has been in receipt of a noncompensable disability rating for his hearing loss of the right ear since February 4, 2005.  
Hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100.  Under DC 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned resulting from audiometric evaluations.  See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing impairment evaluations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a). 
Under DC 6100, Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on the pure tone threshold average and controlled speech discrimination (Maryland CNC) testing.  Table VIa assigns a Roman numeral designation for hearing impairment based only on the pure tone threshold average, and is used when speech discrimination testing is not appropriate or when indicated under the provisions of 38 C.F.R. § 4.86 regarding exceptional patterns of hearing impairment.  The “pure tone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  38 C.F.R. § 4.85(d).  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.  38 C.F.R. § 4.85(e).
If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383 of this chapter.  38 C.F.R. § 4.85(f).
The Veteran underwent audiological testing in April 2017.  The Veteran’s pure tone thresholds, in decibels, were as follows:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	25	45	80	80	80

(The examiner concluded that the Veteran’s left ear could not be tested.)
Speech audiometry revealed speech recognition ability of 74 percent in the right ear using the Maryland CNC speech discrimination test. The average pure tone threshold was 71 decibels for the right ear.  The examiner noted that the Veteran’s right ear had normal acoustic immittance, abnormal ipsilateral acoustic reflexes, and abnormal contralateral acoustic reflexes.  The examiner concluded that the Veteran had right ear sensorineural hearing loss in the frequency range of 500 to 4000 Hz.    
Applying the criteria for evaluating hearing loss to the findings of the April 2017 audiometric evaluation results in designation of Level VI in the right ear based on application of the reported findings to Tables VI and VIA.  The left non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I.  Therefore, pursuant to Table VII, the findings warrant a non-compensable rating under 38 C.F.R. § 4.85, DC 6100.
The Board has considered the Veteran’s statements of the severity of his hearing loss throughout the pendency of this appeal.  The Veteran is competent to report matters of which he has personal knowledge, such as difficulty hearing.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159 (a)(2). 
The preponderance of the evidence is against finding a compensable rating for the Veteran’s hearing loss at any point during the appellate period.  All VA medical examination audiometric results are probative and valid for rating purposes.  The results include both pure tone thresholds and speech discrimination testing using the Maryland CNC test.  There is no evidence to suggest that the audiological testing is not probative. The claim is denied. 
12. Total Rating – Individual Unemployability
The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran now meets the schedular criteria for a TDIU. The Veteran has reported, and the evidence does not dispute that he has been unemployed since at least some point in 2013 and only maintained marginal self-employment prior to that time. 
The Board accords the Veteran the benefit of the doubt and will grant a TDIU.
REASONS FOR REMAND
1. Left ear hearing loss
2. Kidney disorder
3. Renal cyst
4. Back disorder
The Board has determined that additional development is necessary of these claims and the appeal is, therefore, REMANDED as directed below: 
1. Advise the Veteran that he may submit any medical and non-medical evidence not already submitted towards substantiation of his claims.  Provide him with appropriate release forms and allow an appropriate period for the Veteran to respond.
2. Conduct an audiological examination to determine if the Veteran has left ear hearing loss because of active duty service. Thorough explanations must be provided for the opinions rendered.  If the examiner cannot provide an opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation.
The examiner should conduct all appropriate testing and must review the evidence in the electronic file. However, the examiner is advised:
*the Veteran’s right ear hearing loss is service connected;
* In 1968, the Veteran’s service entrance examination indicated bilateral hearing within normal limits.  The Veteran’s 1975 separation examination indicated left ear hearing loss at 3000 Hertz; 
* In May 2011, the Veteran underwent a VA audiological examination.  His left ear puretone threshold values were: 15 dB at 500 Hz, 35 dB at 1000 Hz, 60 dB at 2000 Hz, 70 dB at 3000 Hz, and 75 dB at 4000 Hz.  The average left ear puretone threshold value was 60 dB.  His speech recognition score was 72 percent for the left ear;    
* In April 2017, the Veteran underwent a VA audiological examination.  The results were inconclusive due to cerumen impaction.
3. Conduct a nephrological examination to determine if the Veteran has a kidney disorder and a renal cyst that are related to his active duty service, to include as secondary to his service-connected malaria, exposure to contaminants in the water at Camp Lejeune, and exposure to herbicide agents in the Republic of Vietnam. The examiner should conduct all appropriate testing and must review the evidence in the electronic file. However, the examiner is advised:
* The Veteran’s service treatment records are silent for any symptoms, treatment, or diagnoses of a kidney disorder and/or renal cyst.
* In August 2004, the Veteran was admitted to the Miller County Hospital for abdominal pain and vomiting.  Imaging results showed a small right renal cyst.  A radiology report indicated that the left kidney was unremarkable.  The right kidney contained a 1-centimeter cyst along the inferior pole.  
* In October 2005, the Veteran was examined at the Miller County Hospital.  Imaging of this abdomen (both with and without contrast) demonstrated kidneys within normal limits.  Imaging of the abdomen demonstrated a small right inferior pole renal cyst.  
* April 2006 imaging demonstrated a simple-appearing cyst measuring 14 millimeters.  
* In April 2007, the Veteran was examined at Memorial Hospital and Manor.  The treating physician noted that there was a 1.8 centimeter right renal cyst. The treating physician noted that besides a renal cyst, both kidneys were preserved.
* In August 2017, the Veteran underwent a VA examination.  The examiner stated that the Veteran’s cyst was identified as being a simple renal cyst on abdominal imaging results.  The examiner concluded that there is no association with renal cysts and solvent exposure.  He added that simple renal cysts occur commonly in normal kidneys, the incidence increases with age, and most often occur in persons greater than 50 years old.  They are also more common among males, are benign, and generally do not require treatment.  The examiner opined that the Veteran’s renal cyst was not caused by or the result of the Veteran’s exposure to contaminated water at Camp Lejeune. 
* In May 2015, the Veteran was notified that his kidney function was worsening.  Since that time, the Veteran has been diagnosed with renal failure syndrome.
* The Veteran’s malaria is service connected.  He has a history of active episodes, to include during active duty service when he was hospitalized twice while serving in the Republic of Vietnam. 
4. Conduct a back/musculoskeletal examination to determine if the Veteran has a back disorder and peripheral neuropathy of both or either lower extremity due to active military service. Thorough explanations must be provided for the opinions rendered.  If the examiner cannot provide an opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. The examiner should conduct all appropriate testing and must review the evidence in the electronic file. However, the examiner is advised:
* Although the evidence is silent as to any specific contentions of in-service injuries or events, the Veteran contends that he has a back disorder that is related to his active duty service. THE EXAMINER IS ADVISED THAT THE VETERAN SERVED IN COMBAT, AND HIS ACCOUNT OF COMBAT-RELATED OCCURRENCES ARE THEREFORE PRESUMED CREDIBLE. 
* Service treatment records demonstrated that in December 1969, the Veteran complained of “back pains,” chills, and headaches, which appear to be attributed to his diagnosis of malaria.  
* During active duty service, in January 1970, the Veteran injured his left leg after jumping out of a truck.  He was placed in a cast for approximately three weeks.  
* The evidence is silent as to any back injury or diagnosis during active duty service.
* From November 2009 to September 2009, the Veteran was treated by his private physician for pain of his spine, bilateral lower extremities, and left upper extremity.  With treatment, the Veteran reported some relief of the discomfort in his lower extremities. 
* VA treatment records dated March 9, 2016, show that the Veteran was seen for spinal stenosis.  The Veteran reported having imaging done, but the results were yet to be reported.  He also reported that his back was “a lot better” and that the numbness in his legs had decreased. 
* In March 2016, the Veteran was assigned a diagnosis of severe degenerative joint disease (DJD) with a moderate L5-S1 bulging disc.  
5. After completing all indicated development, readjudicate the claims considering all the evidence. If any of the benefits sought on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the appeal should be returned to the Board for further appellate review, if in order.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). 
(Continued on the next page)
 
This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2017).
 
Vito A. Clementi
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Carolyn Colley, 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

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