Citation Nr: 18132271 Decision Date: 09/06/18 Archive Date: 09/06/18 DOCKET NO. 15-40 578 DATE: September 6, 2018 ORDER Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected disabilities is denied. Entitlement to service connection for left ear otitis media, to include as secondary to service-connected disabilities is granted. Entitlement to service connection for sinus arrhythmia tachycardia, to include as secondary to service-connected disabilities is granted. Entitlement to service connection for hypertension (HTN), to include as secondary to service-connected disabilities is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disabilities is denied. Entitlement to service connection for dermatitis, to include as secondary to service-connected disabilities is granted. REMANDED Entitlement to service connection for allergy to penicillin, to include as secondary to service-connected disabilities is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative arthritis (DA) of the cervical spine is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative arthritis (DA) of the thoracolumbar spine is remanded. Entitlement to an initial compensable rating for service-connected patellofemoral syndrome of the left knee is remanded. Entitlement to an initial compensable rating for service-connected allergic rhinitis is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected asthma with histoplasmosis is remanded. Entitlement to an initial compensable rating for service-connected scar from status post brain shunt placement is remanded. Entitlement to an initial compensable rating for service-connected scars of head, face, and neck is remanded. Entitlement to an initial compensable rating for service-connected scars of the anterior and posterior trunk is remanded. Entitlement to an initial compensable rating for service-connected acquired absence of right lung is remanded. Entitlement to an initial compensable rating for service-connected scars of the upper and lower extremities is remanded. Entitlement to an initial compensable rating for service-connected tension headaches is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right shoulder disability. 2. The Veteran’s left ear otitis media began during active service. 3. The Veteran’s sinus arrhythmia, tachycardia began during active service. 4. The evidence is in relative equipoise that the Veteran’s hypertension began during active service. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of GERD. 6. The Veteran’s dermatitis began during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability, to include as secondary to service-connected disabilities have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017). 2. The criteria for entitlement to otitis media left ear, to include as secondary to service-connected disabilities have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017). 3. The criteria for entitlement to service connection for sinus arrhythmia, tachycardia, to include as secondary to service-connected disabilities have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017). 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for hypertension (HTN), to include as secondary to service-connected disabilities have been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b)(d), 3.307, 3.309(a), 3.310 (2017). 5. The criteria for entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disabilities have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017). 6. The criteria for entitlement to service connection for dermatitis, to include as secondary to service-connected disabilities have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Air Force from January 1995 to October 2011. This matter comes to the Board on appeal from an August 2012 rating decision. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing such service, was aggravated therein. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted through the application of statutory presumptions for chronic conditions, such as cardiovascular-renal disease, which includes hypertension. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. §§ 1101 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307(a)(3) (2017). The application of these presumptions operates to satisfy the “in-service incurrence or aggravation” element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. In addition, service connection may be granted on a secondary basis. 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 (2017). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, because the Veteran served in the Persian Gulf from January 1995 to October 2011, service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and cannot be attributed to any known clinical diagnosis by history, physical examinations, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The Board notes however, that none of the Veteran’s claimed disabilities fall under the Persian Gulf presumption. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected disabilities Here, the Veteran contends that his claimed right shoulder disability is related to his active duty service. However, the evidence of record fails to show the Veteran has a diagnosis of a right shoulder disability. At the outset, the Board acknowledges that the Veteran’s service treatment records (STRs) of June 1996, show the Veteran complained of right shoulder pain, crepitus and weakness after a softball injury. The impression was a shoulder dislocation and muscle strain/tendinitis. However, subsequent treatment records during service fail to show any right shoulder disability. See 2011 STRs. More importantly, the December 2011 VA examination, failed to show a right shoulder disability. The Veteran reported being diagnosed with a right shoulder disability about sixteen years prior. But indicated that he does not experience stiffness, swelling, giving way, llack of endurance, locking, fatigability, deformity, subluxation or dislocation. He did report flare-ups of pain at a level of 4/10, which he treats with Motrin. On examination, the VA physician indicated the shoulder showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. Even more, the right shoulder was within normal limits on range of motion testing and repetitive range of motion testing. The shoulder was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Therefore, the VA physician noted that there is no pathology to diagnosis a right shoulder disability. Importantly, without a current diagnosis, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability); see also Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a “current disability” means a disability shown by competent medical evidence to exist at the time of the award of service connection). Accordingly, the Board finds that the evidence of record is against a finding of service connection for a right shoulder disability. As the preponderance of the evidence is against the Veteran’s claim, the benefit of doubt doctrine is not applicable. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 2. Entitlement to service connection for left ear otitis media, to include as secondary to service-connected disabilities Here, the Veteran was diagnosed with left otitis media during service. The Veteran reported the condition has existed for five to six years. The symptoms are pain from the left ear intermittently 1-2 times per year. The Veteran has a history of ear infections as often as 1-2 times per year and each last for two days, with the date of last infection on October 2011. On examination, the left ear revealed mild erythema, and mastoid was not visible. There was no deformity of the auricle, normal external canal, there was no evidence of aural polyps, no sign of middle ear infection, no cranial nerve condition related to an ear disease as well. Although the VA physician noted there was no pathology to render a diagnosis, the Board finds that service connection is warranted. The Veteran was diagnosed with left ear otitis media during service and reported an ear infection as recent as October 2011. In fact, in his April 2011 STR, otitis media of the left ear was listed as an active chronic condition for the Veteran. Moreover, the Board finds the Veteran’s lay assertions to be competent and credible and of significant probative value. Accordingly, the Veteran’s claim of entitlement to service connection for otitis media of the left ear is granted. 3. Entitlement to service connection for sinus arrhythmia, tachycardia, to include as secondary to service-connected disabilities Here, the Veteran contends that his claimed sinus arrhythmia tachycardia had its onset in service. First, the Board notes that the Veteran’s arrhythmia was confirmed during the December 2011 VA examination. Therefore, there is a current diagnosis. Second, the Veteran’s November 2009 STR showed the Veteran was diagnosed with tachycardia unspecified. Lastly, the medical evidence and the Veteran’s lay assertions support that his tachycardia condition had its onset in service. Although the VA physician could not render a diagnosis, he reported that EKG confirmed that the Veteran had an arrhythmia. Accordingly, the preponderance of the evidence shows that the Veteran’s tachycardia had its onset during service. 4. Entitlement to service connection for hypertension (HTN), to include as secondary to service-connected disabilities For VA compensation purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, DC 7101 n.1 (2017). A diagnosis of hypertension “must be confirmed by readings two or more times on at least three different days.” Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). Here, the Veteran contends that his claimed HTN is related to his active duty service. Based on the evidence of record, the Board agrees. Specifically, there are numerous notations in the Veteran’s STRs that show his diastolic blood pressure was 90mm or greater. For example, in January 2011 the Veteran’s blood pressure was 130/91. In February 2011, it was 135/95, in March 2011, the Veteran’s blood pressure was 127/92. In another March 2011 reading his blood pressure was 120/91. Likewise, in July 2011 the Veteran’s blood pressure was 135/95. Moreover, the Veteran was diagnosed with hyperlipidemia in February 2008 and HTN in January 2008. Conversely, in the December 2011 VA examination, the Veteran’s blood pressure readings were 122/86, 126/86 and 128/84. The VA physician indicated that the Veteran did not have a history of hypertension. Moreover, the VA physician concluded that it was not possible to diagnose hypertension as the remaining two-day BP checks were pending. He added that there were no residuals from the hypertension condition. However, based on the Veteran’s STRs and his lay assertions the Board finds that service connection for hypertension is warranted. The Veteran’s hypertension was diagnosed during service and his STRs show elevated diastolic readings throughout 2011. Therefore, the evidence is at least in relative equipoise that the Veteran’s hypertension had its onset during service. Accordingly, resolving all reasonable doubt in the Veteran’s favor, service connection for hypertension is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disabilities Here, the Veteran contends that his GERD had its onset during service. However, the evidence of record fails to show the Veteran has a current diagnosis of GERD. First, the Veteran’s STRs show that he was diagnosed with esophageal reflux in July 2005. See 2008-2009 STRs. However, the STRs from 2010-2011, showed numerous instances that the Veteran had no symptomatology associated with his gastrointestinal system. Specifically, in an October 2011 discharge note, the Veteran’s gastrointestinal symptom had no symptoms. Again, in an August 2011 note, the Veteran did not exhibit any nausea, vomiting, abdominal pain or diarrhea. In a March 2011 note, the Veteran had normal appetite, no dysphagia, no nausea, no vomiting and no diarrhea. Likewise, in a January 2011 note, the Veteran did not exhibit nausea, vomiting, or diarrhea. Moreover, in a June 2010 note, it was indicated that the Veteran had no gastrointestinal symptoms. In the December 2011 VA examination, the Veteran reported GERD for the past six years that caused heartburn, reflux and regurgitation of stomach contents. He reported that he had 15 attacks within the past year, as often as monthly, with each occurrence lasting two hours. However, his reports do not reconcile with the 2011 STRs that showed no symptomatology of his gastrointestinal system on several occasions from January to October. Even more, the VA physician stated there is no diagnosis for GERD as there is no pathology to a render a diagnosis, with no findings of anemia, malnutrition, dysphagia, epigastric pain, scapular pain, arm pain, passing of black-tarry stools, nausea or vomiting. Therefore, based on the evidence there is no current diagnosis of GERD. Importantly, without a current diagnosis, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability); see also Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a “current disability” means a disability shown by competent medical evidence to exist at the time of the award of service connection). The Board notes that in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of a disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. (emphasis added). Here, however, the Veteran was diagnosed with esophageal reflux in July 2005, but filed his claim for GERD in October 2011. The Board does not consider a six-year gap between the Veteran’s diagnosis and his filing as a “recent diagnosis” that should be considered as a current disability that existed at the time of his claim. Therefore, the Board finds that the Veteran has not been diagnosed with GERD, now, or at any time when his claim was filed or during its pendency. Accordingly, the Board finds that the evidence of record is against a finding of service connection for GERD. As the preponderance of the evidence is against the Veteran’s claim, the benefit of doubt doctrine is not applicable. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 6. Entitlement to service connection for dermatitis, to include as secondary to service-connected disabilities Here, the Veteran contends that his dermatitis had its onset during service. Based on the evidence of record, the Board agrees. Specifically, in a March 2011 dermatology note, the Veteran was treated for lesions on his forehead, lip, forearm and back. The examination of his face showed skin abnormalities of left forehead with 2cm long dry, scaly slightly raised lesion with adjacent 3mm round similar appearing lesion, lesions were well-demarcated, verrucous-like, stuck-on appearance. Likewise, his back had brown symmetric macules, one raised with smooth lesion on lower back. Also, the entire skin of the upper lip was abnormal with 3mm brown macule on right upper lip above vermillion border, which was subsequently removed. His right forearm had an abnormal 3mm smooth raised whitish appearing papule. The lesions were removed and biopsied, and his skin was reported to be pale and crusted but healing at the biopsy site. The Veteran was diagnosed with actinic keratosis and dermatophytosis tinea facialis and prescribed medical cream to treat it. In the December 2011 VA examination, the Veteran reported dermatitis on various parts of his body including his head, feet, and face. He described his skin condition as causing itching, shedding and crusting. He added that the skin conditions worsened when exposed to the sun. On examination, the VA physician noted the Veteran had no exudation, ulcer formation or shedding. The physician did not render a diagnosis as he claimed there was no pathology. The preponderance of the evidence shows that the Veteran had a diagnosis of dermatitis, only a few months before he filed his claim for the same disability. Therefore, the Board finds that there is a current diagnosis of dermatitis. See Romanowsky, supra. Moreover, the Veteran’s lay assertions coupled with the medical evidence show that the Veteran’s dermatitis had its onset during service. Accordingly, as the preponderance of the evidence supports the Veteran’s claim, service connection is warranted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). At the outset, VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled in service, or where clear an unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1132. The regulations provide expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304 (b), and that “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. The December 1994 physical examination for enlistment purposes noted an allergy to penicillin. As such, the presumption of soundness does not apply and the disability pre-existed service. In the December 2011 VA examination, the VA physician indicated that the Veteran has a diagnosis of PCN, but without any objective evidence of a disability. However, the VA physician did not provide an opinion as to whether the disability had been aggravated by active service, or if there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a)(b). Therefore, on remand the VA physician is asked to provide an addendum on whether the Veteran’s PCN was aggravated by service. As it regards all the other issues being remanded, the Veteran was afforded a VA examination for his disability in December 2011, nearly seven years ago. The Board recognizes that, generally the mere passage of time is not a sufficient basis for a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (holding that the mere passage of time, without evidence of worsening, does not require a new examination); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In this instance, however, the length of time from the Veteran’s last examination does not allow the Board to determine accurately the current level of severity of the service-connected disability. The Board notes that, where an increase in the disability rating is at issue for an already service-connected disability, as it is here, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When available evidence is too old for an adequate evaluation of the Veteran’s current condition, VA’s duty to assist includes providing a new examination. Weggerman v. Brown, 5 Vet. App. 281 (1993). As noted above, not only is this last examination too remote, but the examination may no longer reflect the Veteran’s current level of disability regarding his claimed condition. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to fully and fairly evaluate the Veteran’s claim of an increased rating for his DA of the cervical spine; DA of his thoracolumbar spine; patellofemoral syndrome of the left knee; allergic rhinitis; asthma with histoplasmosis; scars; acquired absence of right lung; and tension headaches. See Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain and associate with the record all relevant VA treatment and any private treatment records identified by the Veteran. All records/responses received must be associated with the claims file. 2. Return the claims file to the December 2011 VA examiner, if not available, to a similarly qualified examiner. The examiner is asked to provide an opinion on the following: a) Provide an opinion addressing whether the pre-existing allergy to penicillin was clearly and unmistakably permanently aggravated beyond the normal progression of the disease during the Veteran’s service. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the question. 3. After the foregoing has been completed, schedule the Veteran for a VA examination to ascertain the current nature and severity of his service-connected disabilities. a) Specifically, the examiner is asked to ascertain the current nature and severity of the Veteran’s DA of the cervical spine. b) Ascertain the current nature and severity of the Veteran’s DA of the thoracolumbar spine. c) Ascertain the current nature and severity of the Veteran’s left knee disability. d) Ascertain the current nature and severity of the Veteran’s allergic rhinitis. e) Ascertain the current nature and severity of the Veteran’s asthma with histoplasmosis. f) Ascertain the current nature and severity of the Veteran’s scar from status post brain shunt placement. g) Ascertain the current nature and severity of the Veteran’s scars of the head, face and neck. h) Ascertain the current nature and severity of the Veteran’s scars of the anterior and posterior trunk. i) Ascertain the current nature and severity of the Veteran’s scars of the upper and lower extremities. j) Ascertain the current nature and severity of the Veteran’s acquired absence of right lung. k) Ascertain the current nature and severity of the Veteran’s tension headaches. 4. In conjunction with the above, the claims file must be provided to the examiner for review. All indicated tests and studies should be performed. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. 5. After completing the above actions, and any other development as may be indicated by any response received because of the action taken in the paragraph above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his attorney and after the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel
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