IBS

GAYLE STROMMEN · 2020 · Case ID: 20011363

MIXED

Summary

The veteran, who served in the United States Marine Corps from January 1979 to July 1984, appeals the denial of service connection for several conditions and challenges the assigned ratings for others. The Board granted service connection for an acquired psychiatric disorder, right knee patella chondromalacia, degenerative disc disease of the lumbar spine, and left hip and leg conditions, finding them etiologically linked to service or service-connected disabilities. The Board denied service connection for erectile dysfunction, sleep apnea, right hip and right leg conditions, citing a lack of current diagnosis or persistent symptoms. The claim for bilateral hearing loss was denied as the audiometric results did not meet the criteria for a compensable rating. Tinnitus was denied at a higher than 10% rating as the maximum schedular rating was already assigned. The Veteran was granted a 10% rating for left knee patella chondromalacia, finding painful motion warranted this rating. Claims for earlier effective dates for hearing loss, tinnitus, and left knee chondromalacia were denied as the claims or diagnoses did not arise before the dates of claim or separation from service. The case was remanded for further development on thyroid cancer, IBS, headaches, and a cervical spine condition, requiring additional records and updated VA examinations.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-50 796

Full Decision Text

Citation Nr: 20011363
Decision Date: 02/11/20 Archive Date: 02/11/20

DOCKET NO. 18-50 796
DATE: February 11, 2020

ORDER

Entitlement to service connection for an acquired psychiatric disorder is granted.

Entitlement to service connection for right knee patella chondromalacia is granted.

Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is granted.

Entitlement to service connection for a left hip condition is granted.

Entitlement to service connection for a left leg condition is granted.

Entitlement to service connection for erectile dysfunction is denied.

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for a right hip condition is denied.

Entitlement to service connection for a right leg condition is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

Entitlement to a 10 percent rating for left knee patellar chondromalacia is granted.

Entitlement to an effective date earlier than December 23, 2015 for the grant of service connection for left ear hearing loss is denied.

Entitlement to an effective date earlier than December 23, 2015 for the grant of service connection for tinnitus is denied.

Entitlement to an effective date earlier than September 23, 2016 for the grant of service connection for left knee chondromalacia is denied.

REMANDED

Entitlement to service connection for thyroid cancer is remanded.

Entitlement to service connection for IBS is remanded.

Entitlement to service connection for headaches is remanded.

Entitlement to service connection for a cervical spine condition is remanded.

FINDINGS OF FACT

1. The preponderance of the evidence supports that the Veteran has an acquired psychiatric disorder that is etiologically linked to his active duty service.

2. The preponderance of the evidence supports that the Veteran’s right knee patellar chondromalacia is etiologically linked to his service-connected left knee patellar chondromalacia.

3. The preponderance of the evidence supports that the Veteran’s DDD of the lumbar spine is etiologically linked to his service-connected left knee patellar chondromalacia.

4. The preponderance of the evidence supports that the Veteran’s left hip and leg conditions are etiologically linked to his DDD of the lumbar spine.

5. The evidence of record does not reveal a current diagnosis or persistent recurrent symptoms of erectile dysfunction.

6. The evidence of record does not support that the Veteran has sleep apnea.

7. The evidence of record does not support that the Veteran has a right hip or leg condition.

8. Throughout the period on appeal, audiometric examinations show no greater than level I hearing loss bilaterally.

9. The Veteran experiences tinnitus in each ear, for which the maximum schedular rating of 10 percent is assigned.

10. For the entire appeal period the Veteran’s left knee patella chondromalacia was manifested by flexion of 90 degrees, extension of zero degrees, painful motion without additional functional loss; and no locking, effusion, ankylosis, instability, or subluxation. There was no showing of compensable loss of range of motion.

11. The Veteran’s claim for left ear hearing loss was received on December 23, 2015; the first valid diagnosis of left ear hearing loss for VA purposes was on February 16, 2016.

12. The Veteran’s claim for tinnitus was received on December 23, 2015; the first valid diagnosis of tinnitus was on December 23, 2015.

13. The Veteran’s claim for left knee chondromalacia was received on September 23, 2016; the first valid diagnosis of left knee chondromalacia was in April 1981.

CONCLUSIONS OF LAW

1. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.303.

2. The criteria for service connection for right knee patella chondromalacia have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.

3. The criteria for service connection for DDD of the lumbar spine have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.
psychiatric disorder have been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.303.

2. The criteria for service connection for right knee patella chondromalacia have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.

3. The criteria for service connection for DDD of the lumbar spine have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.

4. The criteria for service connection for a left hip condition have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.

5. The criteria for service connection for a left leg condition have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.

6. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.303.

7. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.303.

8. The criteria for service connection for a right hip condition have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.

9. The criteria for service connection for a right leg condition have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.303.

10. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100.

11. The criteria for entitlement to a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.87, DC 6260.

12. The criteria for entitlement to a 10 percent rating, but no higher, for left knee patellar chondromalacia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5260.

13. The criteria for entitlement to an effective date earlier than December 23, 2015 for the grant of service connection for left ear hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2), (r) (2019).

14. The criteria for entitlement to an effective date earlier than December 23, 2015 for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2), (r) (2019).

15. The criteria for entitlement to an effective date earlier than September 23, 2016 for the grant of service connection for left knee chondromalacia have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2), (r) (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from January 1979 to July 1984.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by
C.F.R. § 3.400(q)(2), (r) (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from January 1979 to July 1984.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303.

Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

1. Acquired Psychiatric Disorder

The Veteran contends that he has anxiety as a result of racially motivated harassment that he endured during active service which is aggravated by concerns about his general health.

The Veteran’s VA treatment records note consistent treatment for anxiety dating back to July 2008. In May 2015, the Veteran underwent a mental status examination. J.V., Ph. D. diagnosed the Veteran with major depressive disorder, generalized anxiety disorder, panic disorder, somatic symptom disorder, and cannabis use disorder. Following an assessment in July 2019, K. B., Psy. D. diagnosed the Veteran with major depressive disorder, with anxious distress. Therefore, the first element of service connection is met.

Turning to an in-service incurrence, the Veteran reported during the July 2019 private assessment that he dealt with significant and persistent racism from other Marines. The Veteran reported that he began experiencing symptoms of anxiety. The Veteran admitted that he was already a heavy drinker but started self-medicating with marijuana. In October 1979, the Veteran was treated for deteriorated health due to drug and ETOH ingestion. The Veteran’s military personnel records (MPRs) reveal that in November 1979 he was counseled for drug and alcohol use and wrongful possession of marijuana. The Veteran also described name calling and harassment which led to frequent fighting throughout his service. The Veteran’s service treatment records (STRs) confirm that the Veteran was involved in at least two fights in January 1982.

A review of the Veteran’s STRs shows that his psychiatric functioning was noted to be normal in his January 1978 enlistment examination. The Veteran also denied having any psychiatric complaints in the January 1978 Report of Medical History. The Veteran’s March 1983 separation examination denotes normal psychiatric findings. The Veteran reenlisted immediately thereafter. Through no fault of the Veteran, the reenlistment examination and separation examination for the Veteran’s second period of service are not of record.

Regarding the Veteran’s claimed in-service incident, the Board notes the Veteran is competent to report details that he directly experienced and observed during service. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). The Board finds that there is adequate evidence to corroborate the Veteran’s account of in-service harassment and finds the reports credible.

As to a nexus, the Board notes that J.V., Ph. D., did not provide a nexus opinion in connection with his May 2015 assessment of the Veteran. The Veteran has provided a positive nexus opinion from K.B., Psy. D in July 2019. The private doctor found that the Veteran’s major depressive disorder with anxious distress as likely as not began in the service and continued thereafter. The doctor explained that it appeared the Veteran did suffer significant discrimination that was stressful to him during service. Her conclusion was based in part on the Veteran’s report of “self-medicating” for many years. The Board finds this
is adequate evidence to corroborate the Veteran’s account of in-service harassment and finds the reports credible.

As to a nexus, the Board notes that J.V., Ph. D., did not provide a nexus opinion in connection with his May 2015 assessment of the Veteran. The Veteran has provided a positive nexus opinion from K.B., Psy. D in July 2019. The private doctor found that the Veteran’s major depressive disorder with anxious distress as likely as not began in the service and continued thereafter. The doctor explained that it appeared the Veteran did suffer significant discrimination that was stressful to him during service. Her conclusion was based in part on the Veteran’s report of “self-medicating” for many years. The Board finds this opinion probative. Moreover, there is no medical opinion or other evidence of record to contradict the findings.

After having carefully reviewed the record and weighing the evidence in support of and the evidence against the claims, the most probative evidence of record supports the Veteran’s claim of entitlement to service connection for major depressive disorder with anxious distress and the appeal is granted.

The Board acknowledges the Veteran’s contention that his anxiety is aggravated by his service-connected disabilities. In light of the grant of service connection on a direct basis, the Board did not consider secondary service connection based on aggravation.

2. Right Knee and DDD of the Lumbar Spine

There is no dispute that the Veteran is service connected for left knee chondromalacia. There is also no dispute that the Veteran has been diagnosed with right knee chondromalacia and degenerative disc disease of the lumbar spine.

Turning to nexus, the Veteran was provided with a VA examination for knee and lower leg conditions in October 2016. The examiner found that the Veteran’s right knee chondromalacia was less likely than not incurred in or caused by service as there was no evidence of continuity of care for a chronic right knee condition after service. The Board finds this opinion probative as to direct service connection. However, the examiner did not opine as to secondary service connection. The Board notes that the Veteran has not been afforded a VA examination in connection with his service connection claim for DDD of the lumbar spine.

Dr. H. S. interviewed the Veteran in July 2019. After review of the Veteran’s medical records which reveal an antalgic gait, Dr. H. S. opined that the Veteran’s antalgic gait caused by his left knee chondromalacia more likely than not caused degeneration of the right knee and DDD of the lumbar spine. The private doctor cited medical research which proposed that “with limping there is a shift of the body’s center of gravity towards the affected leg. This results in lateral bending of the trunk towards that side...the increased muscle pull increases the force transmitted across the lumbar discs, facet joints, hip, knee and ankle due to mechanical leverage. This in turn, can cause or aggravate degenerative change of the disc and facet joints.” The Board finds this opinion probative as to the claims of service connection for right knee chondromalacia and DDD of the lumbar spine.

Given the probative evidence, the Board finds that the preponderance of the evidence supports the Veteran’s claim. As such, service connection for right knee chondromalacia and DDD of the lumbar spine as secondary to the Veteran’s service-connected left knee chondromalacia is granted.

3. Left Hip and Left Leg

In light of the grant of service connection for DDD of the lumbar spine herein, the Board has considered whether service connection may be granted for left hip and leg conditions on a secondary basis.

The record contains persistent complaints of recurrent and debilitating pain radiating from the Veteran’s left hip down to the sole of his foot. In December 2016, the Veteran was diagnosed with chronic back pain with left radiculopathy. The Veteran was scheduled for back surgery. VA physical therapy notes from 2015-2016 indicate that the Veteran continued to experience back pain and associated left lower extremity pain following the surgery.

Although there is no nexus opinion of record, the Board finds that the medical evidence supports a nexus between the Veteran’s service-connected DDD of the lumbar spine and radiculopathy of the left lower extremity. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (2009). Therefore, the preponderance of the evidence is for the claim and the appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

4. Erectile Dysfunction, Sleep Apnea, Right Hip and Right Leg

The Veteran contends that he currently has erectile dysfunction, sleep ap

4. Erectile Dysfunction, Sleep Apnea, Right Hip and Right Leg

The Veteran contends that he currently has erectile dysfunction, sleep apnea, right hip and right leg conditions, which he asserts are related to his active service. Review of the record does not indicate diagnoses or recurrent symptoms of the claimed conditions.

The medical records contain no mention of erectile dysfunction. While the Veteran reported that he snores, he consistently denied sleep apnea in VA treatment records from April 2015 to present. Following back surgery in November 2016, the Veteran reported that he had been sleeping on his back with his knees to the left side secondary to right hip pain. Aside from this isolated complaint, the records are devoid of any reports of right hip or leg pain. The Veteran has not provided any lay statement revealing symptoms of erectile dysfunction, sleep apnea, right hip or right leg conditions.

5. The Board acknowledges that Dr. H. S. provided a positive nexus opinion for right hip and leg conditions in July 2019. Dr. H. S. indicated that he interviewed the Veteran and reviewed the Veteran’s c-file in connection with the opinion. However, as noted the medical records do not reveal any treatment for right hip and leg conditions. Dr. H. S.’s report did not detail his interview with the Veteran. Therefore, his report does not contain any lay statements indicating that the Veteran’s right hip and leg pain continued after the isolated report in November 2016 or resulted in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (a disability manifested solely by pain that causes functional impairment of earning capacity is a disability).

Lacking a current diagnosis for erectile dysfunction, sleep apnea, right hip and right leg conditions, the Veteran does not meet the cornerstone element of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Saunders, supra. As such, an assessment of the remaining elements is not necessary, and service connection for erectile dysfunction, sleep apnea, right hip and right leg conditions is not warranted. Thus, the claims of entitlement to service connection are denied because there is no current disability.

Increased Rating

The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Additionally, at the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999).

Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

6. Bilateral hearing loss

Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11)
diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

6. Bilateral hearing loss

Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran filed an appeal challenging his initial rating in March 2017. The Veteran’s initial noncompensable rating was based on the audiometric results from a February 2016 VA examination for hearing loss. The results of the audiological test are as follows, with puretone thresholds recorded in decibles:

HERTZ

1000 2000 3000 4000

RIGHT 25db 25db 35db 35db

LEFT 25db 30db 40db 50db

Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 96 percent for the right ear and 100 percent for the left ear. The average of the puretones between 1000-4000 Hertz was 30 for the right ear and 36.25 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for each ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Because the Veteran’s audiometric results do not reveal an exceptional patter on hearing impairment, Table VIa is not applicable. 38 C.F.R. § 4.86.

In October 2016, the Veteran was provided a second VA examination. The results of the audiological test are as follows, with puretone thresholds recorded in decibels:

HERTZ

1000 2000 3000 4000

RIGHT 25db 25db 35db 40db

LEFT 25db 30db 40db 50db

Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 92 percent bilaterally. The average of the puretones between 1000-4000 Hertz was 31.25 for the right ear and 36.25 for the left. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for both ears. Such a degree of hearing loss warrants a noncompensable rating under Table VII. Again, the results did not reveal an exceptional pattern of hearing loss.

Based on the above, the Board finds that the claim must be denied. The Veteran provided no lay evidence regarding difficulty hearing. Regardless, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. Accordingly, the examinations of record are afforded great probative value in determining the Veteran’s level of hearing impairment.

There is no indication in the medical evidence of record that the Veteran’s hearing loss warranted other than the currently assigned 0 percent rating throughout the appeal period. As such, assignment of staged ratings is not warranted. See Hart, 21 Vet. App. 505

The most probative evidence as to the nature of the appellant’s hearing loss is the audiometric findings, and those discussed above reveal that the Veteran’s hearing loss does not warrant entitlement to a compensable rating. In reaching this conclusion, the Board has considered the applicability of the reasonable doubt doctrine; however, since the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

7. Tinnitus

The Veteran contends that his tinnitus is more disabling than the rating assigned. The Veteran’s tinnitus is rated under Diagnostic Code
most probative evidence as to the nature of the appellant’s hearing loss is the audiometric findings, and those discussed above reveal that the Veteran’s hearing loss does not warrant entitlement to a compensable rating. In reaching this conclusion, the Board has considered the applicability of the reasonable doubt doctrine; however, since the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

7. Tinnitus

The Veteran contends that his tinnitus is more disabling than the rating assigned. The Veteran’s tinnitus is rated under Diagnostic Code 6260. 38 C.F.R. § 4.87. Pursuant to Diagnostic Code 6260, a 10 percent rating is assigned for tinnitus whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006).

The Board acknowledges the Veteran’s reports of worsening tinnitus at his February 2016 VA examination. However, the Veteran has been assigned the maximum schedular rating available for tinnitus, which is assigned regardless of the extent of the tinnitus and whether the ringing is unilateral or bilateral. As there is no legal basis upon which to award a higher or separate schedular rating for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).

8. Left knee patellar chondromalacia

In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). Pain on movement, swelling, deformity, or atrophy of disuse is relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2017).

Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans’ Claims also has recently held, that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance.” Id., quoting 38 C.F.R. § 4.40.

In this case, the Veteran is currently assigned a noncompensable rating for left knee patella chondromalacia.

For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260.

Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261.

VA’s General Counsel has
, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260.

VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004).

Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The Veteran has been assigned a separate rating of 20 percent under this Diagnostic Code, as discussed below. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage.

VA’s General Counsel has held that a veteran may be awarded separate ratings for limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257 or 5259. VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

Where the record does not reflect compensable limitation of range of motion, 38 C.F.R. § 4.59 allows for the assignment of the lowest compensable rating for limitation of motion available for a joint if there is acknowledged painful motion, even if the range of motion is not limited to the lowest compensable level under the applicable diagnostic code. Burton, supra. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260 for limitation of flexion, the lowest compensable rating for limitation of motion is 10 percent.

While the record reflects a degree of limitation to the Veteran’s range of motion in left knee flexion, that limitation has not been shown to rise to a compensable level during the current appeal period. VA treatment records show consistent complaints of left knee pain, and the Veteran has been afforded a VA examination in connection with his knee disability.

The October 2016 VA examination showed limitation in flexion only. Range of motion testing showed left knee flexion to 90 degrees and extension to 0 degrees with pain noted on flexion and extension. There was no showing of additional loss of range of motion after three repetitions of testing. Stability testing was normal, and the examiner noted the Veteran had no history of subluxation or meniscal conditions. The Veteran complained of flareups and loss of function with overuse but demonstrated no additional contributing factors. The examiner was unable to state whether pain, fatigability or incoordination significantly limited functional ability with repeated use because the Veteran was unable to replicate his experienced range of motion on examination.

In reviewing the evidence, the Board finds that at 10 percent rating, but no higher is warranted to compensate the Veteran for demonstrated painful motion. For the entire period on appeal, the knee demonstrated only noncompensable loss of motion with pain. Thus, a higher rating is not warranted as the Veteran is being compensated for his painful motion at the highest level possible. See Burton, supra.

Further, the record does not reveal meniscal symptoms warranting a rating under Diagnostic Code 5258 or 5259. The evidence shows no history of diagnoses involving the meniscus in his left knee, there is no evidence of joint “locking” in the left knee, and treatment and examination records consistently reflect no effusion into the left knee joint. As such, a rating in excess of 10 percent would not be available under these Diagnostic Codes.

There is no evidence of left knee instability, hence a separate rating under Diagnostic Code 5257 is inappropriate in this case. Moreover, there is no evidence of ankylosis, malunion or nonunion of the tibia or fibula, or genu recurvatum with weakness and insecurity on weight-bearing, so the provisions governing those conditions are inapplicable. 38 C.F.R
5259. The evidence shows no history of diagnoses involving the meniscus in his left knee, there is no evidence of joint “locking” in the left knee, and treatment and examination records consistently reflect no effusion into the left knee joint. As such, a rating in excess of 10 percent would not be available under these Diagnostic Codes.

Accordingly, the Board finds that entitlement to a rating of 10 percent, but no higher, is warranted for painful motion of the left knee with patella chondromalacia.

Earlier Effective Date

In assigning effective dates, the general rule is that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit.

If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2).

Prior to March 24, 2015, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155 (a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).

In regards to the date of entitlement, the term “date entitlement arose” is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a “facts found” basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier that the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).

9. Left ear hearing loss and tinnitus

The Veteran contends that he is entitled to an effective date earlier December 23, 2015 for the grants of service connection for left ear hearing loss and tinnitus.

Initially, the Board must determine the date the claim was received. VA first received a claim for service connection for bilateral hearing loss and tinnitus on December 23, 2015. The Board has reviewed the record but has not found any formal or informal written communication that could be construed as a claim for service connection for left ear hearing loss or tinnitus prior to December 23, 2015. Thus, the date of claim is December 23, 2015. The Board notes that December 23, 2015 was not within a year of the Veteran’s separation from active duty service, therefore, 38 U.S.C. § 5110 (b)(1) is not for application.

As to the date entitlement arose, the Board
must determine the date the claim was received. VA first received a claim for service connection for bilateral hearing loss and tinnitus on December 23, 2015. The Board has reviewed the record but has not found any formal or informal written communication that could be construed as a claim for service connection for left ear hearing loss or tinnitus prior to December 23, 2015. Thus, the date of claim is December 23, 2015. The Board notes that December 23, 2015 was not within a year of the Veteran’s separation from active duty service, therefore, 38 U.S.C. § 5110 (b)(1) is not for application.

As to the date entitlement arose, the Board notes that Veteran has not set forth the specific effective dates sought for the grants of service connection for left ear hearing loss and tinnitus. Turning to the evidence of record, the Veteran consistently denied hearing loss and ringing in the ears in VA treatment records preceding the date of claim. VA treatment records from March 2014 and August 2015 indicate that the Veteran’s hearing “appeared to be within normal limits.” It is unclear what testing was used to support this conclusion. The Veteran was first diagnosed with tinnitus and hearing loss for VA purposes at a VA examination in connection with his claim. The Veteran’s records do not contain any audiometric results prior to the February 16, 2016 VA examination.

As the record does not contain any audiometric results revealing hearing loss for VA purposes until February 16, 2016, there was no evidence of a current disability before February 16, 2016. Thus, the date of receipt of the claim predates the date on which entitlement arose for left ear hearing loss.

Accordingly, because the date entitlement arose in February 2016 is later than the December 2015 date of claim, an effective date earlier than the date of claim is not warranted.

Similarly, there is no evidence of a disability of tinnitus prior to the date of claim. However, because tinnitus is self-diagnosable, the Veteran’s claim for service connection can serve as an indication that he was experiencing ringing in the ears as of that date. Therefore, the date of receipt of the claim is the same date on which entitlement arose. As such, the RO assigned the earliest possible effective date for its grant of service connection for tinnitus.

Based on the evidence discussed above, the appeal is 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 claim, that doctrine is not applicable in the instant appeal. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

10. Left knee patellar chondromalacia

Additionally, the Veteran claims entitlement to an effective date earlier than September 23, 2016 for the grant of service connection for left knee patellar chondromalacia. The Veteran has not set forth the specific effective date sought for the grant of service connection or any argument as to why the date assigned is in error, and the evidence of record does not support that an earlier effective date is warranted.

Reviewing the evidence, VA first received a claim for service connection for bilateral knee conditions on September 23, 2016. The Board has reviewed the record but has not found any formal or informal written communication that could be construed as a claim for service connection for left knee chondromalacia prior to September 23, 2016. Thus, the date of claim is September 23, 2016.

Turning to the date entitlement arose for the Veteran’s left knee, his service treatment records indicate a diagnosis of left knee chondromalacia in April 1981. Although the Veteran’s condition was diagnosed in service, the Veteran did not file his claim for disability compensation within a year after separation from service. Therefore, 38 U.S.C. § 5110 (b)(1) is not for application.

As the later of the two dates is September 23, 2016, the date the claim was received, the effective date of September 23, 2016 currently assigned to the grant of service connection for left knee patellar chondromalacia is appropriate. Thus, entitlement to an effective date prior to September 23, 2016, for the award of service connection for left knee patellar chondromalacia is denied.

REASONS FOR REMAND

1. Entitlement to service connection for thyroid cancer is remanded.

REASONS FOR REMAND

1. Entitlement to service connection for thyroid cancer is remanded.

A remand is warranted to obtain outstanding Social Security Administration (SSA) records relevant to the Veteran’s claim of service connection for thyroid cancer. In VA treatment records from February 2015, the Veteran reported that he filed for Social Security Disability that month. He explained that SSA was awaiting the outcome of the Veteran’s pending thyroid surgery to determine an award of benefits. However, the claims file does not include the decision or the records upon which the SSA decision would be based. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making as many requests as are necessary to obtain relevant records from a federal department or agency such the SSA. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c)(2) (2017). As the record does not reflect that the AOJ has attempted to obtain these SSA records, efforts to obtain the records should be made upon remand.

2. Entitlement to service connection for IBS is remanded.

The Veteran has not been afforded a VA examination in connection with his claim for service connection for IBS. In light of the grant of service connection for an acquired psychiatric condition awarded herein, remand is necessary to obtain a medical opinion as to the nature and etiology of the Veteran’s gastrointestinal symptoms. VA treatment records from January 2018 indicate that the Veterans gastrointestinal issues may be a side effect of psychotropics he was prescribed for his anxiety. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4).

The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Therefore, the question of “aggravation” is pertinent in order for the Board to properly adjudicate the Veteran’s claim. Additionally, the Board notes that if an examination report does not contain sufficient detail, “it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet. App. 1, 12 (2001).

3. Entitlement to service connection for headaches is remanded.

The Veteran has not been afforded a VA examination in connection with his claim for service connection for headaches. The Veteran contends that his headaches are related to his service-connected tinnitus and acquired psychiatric disorder. The Veteran provided articles that indicate headaches are more common in patients with psychiatric diagnoses. However, these articles are not specific to this Veteran. The Board has considered the representative’s arguments based on a medical opinion provided by Dr. H. S. However, the referenced opinion is not of record. The Board notes that a large number of documents were uploaded on the same date in September 2019, and the opinion may have been inadvertently omitted. Therefore, the record does not contain sufficient competent medical evidence for the Board to decide the claim and a remand is necessary. See McClendon, supra.

4. Entitlement to service connection for a cervical spine condition is remanded.

The Veteran has claimed that he has neck pain caused by his headaches. See September 2019 Third Party Correspondence. As the Veteran contends that his neck pain is secondary to his headaches, the Board finds that this claim is inextricably intertwined with the service connection claim for headaches. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Final appellate review of this claim must be deferred until the appropriate actions concerning the Veteran’s service connection claim for headaches is completed and the matter is either resolved or prepared for appellate review. Therefore, if there is a positive nexus opinion for the Veteran’s headaches an opinion as to the etiology of the veteran’s neck pain is also required.

The matters are REMANDED for the following action:

1. Contact the Veteran and ask him to identify any VA and private medical treatment records for his thyroid cancer, IBS, headaches and neck pain. Obtain any outstanding VA treatment records. For any private records, the AOJ should provide the Veteran with the appropriate
Derwinski, 1 Vet. App. 180, 183 (1991). Final appellate review of this claim must be deferred until the appropriate actions concerning the Veteran’s service connection claim for headaches is completed and the matter is either resolved or prepared for appellate review. Therefore, if there is a positive nexus opinion for the Veteran’s headaches an opinion as to the etiology of the veteran’s neck pain is also required.

The matters are REMANDED for the following action:

2. Obtain any records from SSA, to include any award of disability benefits and any underlying records used in reaching the determination. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if the records are not available.

3. After obtaining outstanding records, schedule the Veteran for a VA examination with the appropriate examiners to assess the nature and etiology of any currently diagnosed gastrointestinal disability and headaches.

The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed.

The examiner is advised that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation.

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

GASTRO-INTESTINAL CONDITION: The examiner is asked to identify all gastrointestinal disabilities present, to include IBS, at any time during the appeal period.

For each diagnosis identifed AT ANY TIME throughout the pendency of the claim, the examiner should state whether it is as least as likely as not (i.e. 50 percent or greater probability) that the disability is proximately due to or aggravated by the Veteran’s service-connected acquired psychiatric disorder or any associated treatment, i.e. medications.

HEADACHES: The examiner should identify any headache conditions present during the appeal period.

For each condition identified, the examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s headaches are proximately due to or aggravated by the Veteran’s active duty service or his service-connected tinnitus.

If and only if the examiner finds the Veteran’s headache condition is etiologically linked to his active duty service, the examiner should provide an opinion, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s neck pain is proximately due to or aggravated by the Veteran’s headache condition.

The examiner should note aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms.

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board C. Sherman Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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