Citation Nr: 1761173
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 11-30 769 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities.

2. Entitlement to service connection for a neurological disorder of the right lower extremity, to include as secondary to the service-connected lumbar spine disability.

3. Entitlement to service connection for a bilateral hip disorder.

4. Entitlement to service connection for a bilateral ankle disorder.

5. Entitlement to service connection for a bilateral arm disorder.

6. Entitlement to service connection for a skin disorder of the bilateral arms.

7. Entitlement to service connection for a bilateral knee disorder.

8. Entitlement to an initial compensable rating for bilateral hearing loss.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel

INTRODUCTION

The Veteran had active duty service from November 1961 to November 1965.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in February 2010 and July 2010.

The February 2010 rating decision granted service connection for bilateral hearing loss and assigned an initial noncompensable evaluation effective September 3, 2009. Service connection for a skin disorder of the bilateral arms, a right knee disorder, a right lower extremity disorder, an acquired psychiatric disorder, and disorders of the bilateral hip and bilateral ankle were denied. This rating decision also denied claims for service connection for disorders of the lumbar spine and left lower extremity.

The July 2010 rating decision denied service connection for a left knee disorder and a bilateral arm disorder.

The claims were remanded in May 2012 in order to schedule the Veteran for a requested hearing. He subsequently presented testimony before a Veterans Law Judge in June 2013. A transcript is of record. The claims were remanded by the Board in April 2015 for additional development.

Service connection for disorders of the lumbar spine and left lower extremity were granted in an April 2017 rating decision. As such, those issues are no longer before the Board for appellate review.

The Veterans Law Judge who conducted the June 2013 hearing is no longer employed by the Board. The Veteran was informed of this was provided the opportunity to exercise his right to testify at a new hearing before another Veterans Law Judge. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The Veteran did not indicate that he wanted to have another Board hearing.

The Board notes that in April 2015, it referred a claim for entitlement to a total disability rating for compensation based on individual unemployability (TDIU). This claim was later adjudicated and denied in an April 2015 rating decision that the Veteran did not appeal. The Veteran’s representative contends that it is part and remains part of the appeal concerning entitlement to an initial compensable rating for bilateral hearing loss. See October 2017 post-hearing brief. The Board disagrees and although the issue was included in an April 2017 supplemental statement of the case, the Board finds this was an error on the part of the RO. As noted above, the Board referred the claim in April 2015 rather than taking jurisdiction of it pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) as part of the claim for an increased rating for the service-connected bilateral hearing loss. Moreover, the representative now asserts that the Veteran is entitled to a TDIU on the basis of his service-connected tinnitus and disorders of the lumbar spine and left lower extremity, and the Board does not have jurisdiction of those issues, so it cannot be said that the claim for TDIU is before it pursuant to Rice.

The issue of entitlement to service connection for a bilateral knee disorder and the issue of entitlement to an initial compensable rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. Current diagnoses involving an acquired psychiatric disorder; a neurological disorder of the right lower extremity; and disorders of the bilateral hip, bilateral ankle, and bilateral arm, are not shown by the evidence of record.

2. The competent and probative evidence of record does not establish that the Veteran’s current skin disorder of the bilateral arms is related to service.

CONCLUSIONS OF LAW

1. The requirements for establishing service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).

2. The requirements for establishing service connection for a neurological disorder of the right lower extremity have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).

3. The requirements for establishing service connection for a bilateral hip disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

4. The requirements for establishing service connection for a bilateral ankle disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

5. The requirements for establishing service connection for a bilateral arm disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

6. The requirements for establishing service connection for a skin disorder of the bilateral arms have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Board notes that actions requested in the prior remands have been undertaken. In this regard, the Veteran was scheduled for a Board hearing; he was asked for the names and addresses of all medical care providers who treated him for his claimed disabilities, with specific reference to three facilities; he was asked to identify the VA facility from which he had received treatment beginning in 2000; he was asked to identify the approximate dates of hospitalization at the Kadena Air Force Base in Okinawa, Japan; he was informed of alternative evidence that he may submit in lieu of the service treatment records to substantiate his claims; additional VA treatment records were obtained; and VA examinations were scheduled. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also letters dated June 2015 and October 2015. The Board notes that the Veteran did not provide any response to the June 2015 and October 2015 letters.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

In cases where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis or other organic diseases of the nervous system become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

The Veteran essentially contends that he is entitled to service connection for a skin disorder of the bilateral arm, a neurological disorder of the right lower extremity, a bilateral hip disorder, a bilateral ankle disorder, a bilateral arm disorder, and an acquired psychiatric disorder, because all of these disabilities are related to his military service, in particular from playing football for the Air Force as well as his duties as a fireman. He alternatively contends that the neurological disorder of the right lower extremity is secondary to his service-connected low back disability and that the acquired psychiatric disorder is secondary to his service-connected bilateral hearing loss and tinnitus.

As an initial matter, the Board notes that the evidence of record, to include the VA examination reports obtained following the Board’s April 2015 remand, fails to establish that the Veteran has current diagnoses involving an acquired psychiatric disorder, a neurological disorder of the right lower extremity, and disorders of the bilateral hip, bilateral ankle, and bilateral arm. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board acknowledges the Veteran’s assertions that he has a neurological disorder of the right lower extremity, an acquired psychiatric disorder, and disorders of both hips, both ankles, and both arms as a result of service, to include playing football and his duties as a fireman; that he has developed arthritis-like symptoms as a result of in-service injuries to his hips, ankles and arms; and that he has an acquired psychiatric disorder and a neurological disorder affecting the right lower extremity as a result of service-connected disabilities. While the Veteran is competent to report the circumstances of experiencing injuries during service, as a lay person without specialized training, he is not competent to report a diagnosis of arthritis involving the hips, ankles or arms, or diagnoses involving the psychiatric or neurological systems. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board also points out that during the December 2015 VA orthopedic examinations, the Veteran denied any problems or symptoms involving the bilateral upper extremity, to include the elbows/forearms, and he denied any problems with his ankles, stating “That lawyer I got, he tries to make things worse than they really are…they go after every thing they can think of.”

The examiner who conducted the December 2015 VA orthopedic examinations specifically determined that the Veteran did not have diagnoses involving the hips, ankles, arms, or right lower extremity, and that the Veteran’s complaint of left hip pain was related to sciatica (which the Board notes was subsequently service-connected). The examiner who conducted the December 2015 VA mental disorders examination specifically determined that the Veteran did not meet the criteria for a psychiatric disorder and that he did not report clinically significant symptoms of depression, anxiety, or any other psychiatric disorder. The Board finds these findings to be more probative than the Veteran’s lay assertions. Without evidence of current and probative diagnoses involving an acquired psychiatric disorder, a neurological disorder of the right lower extremity, and disorders of the bilateral hip, the bilateral ankle, and/or the bilateral arm, service connection is not warranted and the claims must be denied.

Concerning the remaining claim for service connection for a skin disorder of the bilateral arms, the Veteran was diagnosed with lentigo senilis during a December 2015 VA examination. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service.

Service treatment records are devoid of reference to complaint of, or treatment for, a skin condition affecting either arm. The Veteran testified that his arms would bleed and bruise as a result of playing football during service and that he has skin condition as a result. He is competent to report the circumstances of experiencing injuries to the skin on his arms during service. See Jandreau, 492 F.3d at 1376-77.

There is no indication from the post-service evidence of record that the Veteran has sought any treatment for the skin on his arms since his discharge from service. During the December 2015 VA skin conditions examination, the Veteran reported a brown pigmented area to his bilateral anterior forearms had been there for many years, but had no symptoms. It was also noted he had several ecchymotic areas to the bilateral anterior forearms and hands that he attributed to aspirin (ASA) use, noting that if he bumped himself, he bruised. The Veteran is competent to report a continuity of symptoms since service, id., although he also stated during the December 2015 VA examination that “That lawyer I got, he tries to make things worse than they really are.”

The preponderance of the evidence, however, is against the claim for service connection for a skin disorder of the bilateral arms. The examiner who conducted the December 2015 VA examination provided an addendum opinion in April 2017 that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was based on the Veteran’s denial of a skin condition on his arms; his assertion that his lawyer tried to make things worse than they are; a determination that the brown pigmented areas noted on both arms were related to the natural aging process; and a determination that the ecchymotic areas noted on both arms was related to aspirin use.

While the Veteran believes that his current skin disorder of the bilateral arms is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Id. In this regard, the diagnosis and etiology of a skin disorder of the bilateral arms are matters not capable of lay observation, and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of his skin disorder of the bilateral arms is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of his current skin disorder of the bilateral arms is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions.

In the absence of competent and probative evidence that the Veteran’s current skin disorder of the bilateral arms is related to service, service connection is not warranted and the claim must be denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56.

ORDER

Service connection for an acquired psychiatric disorder is denied.

Service connection for a neurological disorder of the right lower extremity is denied.

Service connection for a bilateral hip disorder is denied.

Service connection for a bilateral ankle disorder is denied.

Service connection for a bilateral arm disorder is denied.

Service connection for a skin disorder of the bilateral arms is denied.

REMAND

Clarification is needed from the VA examiner who examined the Veteran’s knees in December 2015. In addition, a more recent examination is needed to assess the current severity of the Veteran’s bilateral hearing loss. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2017).

Accordingly, the case is REMANDED for the following action:

1. Return the claims file to the examiner who conducted the December 2015 orthopedic examination of the Veteran’s knees. If that examiner is not available, the opinion should be obtained from another qualified examiner. If a new examination is deemed necessary to respond to the question presented, one should be scheduled.

The examiner is asked to address whether it is at least as likely as not that the Veteran’s bilateral patellofemoral pain syndrome and left knee joint space narrowing with tibial turbercle is related to his active service, to include whether any of the left knee findings represent a progression of the April 1963 assessment of probable left knee strain.

In providing the opinion, the examiner must address the Veteran’s report of intermittent knee pain after separation from service, even in the absence of documentation showing chronicity from 1963 to 2008.

The examiner is also asked to reconcile the statement that the left tibial turbercle found on x-ray, which was noted to be related to remote trauma or fracture to the area and consistent with the Veteran’s report that a “a knot came up on my knee after I fell and it never went away,” with the determination there is no specific documentation supporting the Veteran’s claim of the injury from falling on his left knee.

2. Schedule the Veteran for a VA audiological examination to assess the current severity of his service-connected bilateral hearing loss. The claims file should be made available to and reviewed by the examiner. All indicated testing should be accomplished and the results reported.

3. After undertaking the development above and
any additional development deemed necessary, the Veteran’s claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 (2012).

______________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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