Citation Nr: 18160445
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 14-03 339
DATE:	December 26, 2018
ORDER
Entitlement to service connection for hyperhidrosis with associated rhabdomyolysis is denied.
FINDINGS OF FACT
1. The record contains clear and unmistakable evidence demonstrating the Veteran had hyperhidrosis that existed prior to his entry to active service.
2. The record contains clear and unmistakable evidence demonstrating that the Veteran’s hyperhidrosis was not aggravated by active service. 
CONCLUSION OF LAW
The criteria for entitlement to service connection for hyperhidrosis with associated rhabdomyolysis have been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active duty from August 2011 to September 2011. 
1. Entitlement to service connection for hyperhidrosis with associated rhabdomyolysis
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Every veteran is presumed to be in sound condition upon entry except as to any injury or disease noted at the time of enlistment. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  In determining whether a specific condition is “noted” on entry, the Board’s analysis is limited to whether the condition was recorded in the enlistment examination report. 38 C.F.R. § 3.304 (b).  The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service.  Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. 
Under 38 U.S.C. § 1153; 38 C.F.R. § 3.306 a preexisting disability will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  Aggravation will be rebuttably presumed where there is affirmative evidence of in-service worsening.  Conversely, aggravation will not be conceded where the preexisting disability underwent no discernible increase in severity in service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  Mere “temporary or intermittent flare-ups” of a preexisting condition are generally insufficient to show that in-service worsening has occurred.  See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993).  However, the degree of in-service worsening need not be so great as to warrant compensation for the presumption of aggravation to attach.  Browder v. Derwinski, 1 Vet. App. 204, 207 (1991).  Notably, once the presumption of aggravation does attach, the government bears the burden of showing, by clear and unmistakable evidence, “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004).
The Veteran’s March 2011 entrance examination is silent for hyperhidrosis and rhabdomyolysis, or any other type of kidney condition.  As such, the Veteran is presumed sound.  
However, the evidence of record demonstrates that the Veteran suffered from hyperhidrosis, or symptoms thereof, prior to his entry into active service.  Thus, the burden falls on VA to rebut the presumption of soundness with clear and unmistakable evidence that the Veteran suffered from hyperhidrosis and rhabdomyolysis that pre-existed, and was not aggravated by, his service.  See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).
The Veteran entered service on August 29, 2011.  On September 1, 2011 – approximately 3 days after induction, the Veteran sought medical treatment and reported feeling light headed and dizzy. The Veteran reported profuse sweating that began on August 29, 2011 – the date of service entry.  
On September 2, 2011 – approximately 4 days after induction, the Veteran suffered from mild rhabdomyolysis and dehydration, as well as sweating and chills of an unknown cause.  The Veteran was diagnosed with hyperhidrosis.  The Veteran reported that he began having body aches about for the prior 4 days.  The Veteran reported no previous hospitalizations associated with his symptoms.  
A September 6, 2011 service treatment record notes “documentation of [Veteran’s] history of [hyperhidrosis] since 6 years of age associated with playing sports.”  A service medical professional opined that continued service would cause the Veteran to experience “significant problems with hyperhidrosis including [rhabdomyolysis], dehydration, and syncope, which is why he is recommended... to [be] separated from... training.”  The Veteran’s service treatment records also contain a formal medical opinion which recommended that the Veteran be separated from service due to his hyperhidrosis and rhabdomyolysis, noted as existing prior to enlistment.  
In March 2012, the Veteran was afforded a VA examination.  The Veteran reported that he continued to have trouble staying hydrated and is tired all the time.  He reported that he was told that the problem with the hyperhidrosis in the military stemmed from the fact that, unlike when he was playing sports when he was young, he did not have access to drinks such as Gatorade to replenish nutrients lost while sweating in basic training.  
The examiner concluded that the Veteran had hyperhidrosis since childhood.  The Veteran reported that his symptoms from dehydration in the military in September 2011 have not completely resolved.  The Veteran reported the symptoms include dark urine and fatigue.    The examiner noted that the Veteran’s current lab results indicate the Veteran’s mild rhabdomyolysis has not completely resolved or has been aggravated by continuing problems of dehydration since discharge from the military secondary to the Veteran’s hyperhidrosis.  The examiner further noted that urinalysis indicates possible UTI/prostatis/epididymitis as well as indicated continued problems with dehydration.  “Therefore, it appears that the Veteran’s exacerbation of his hyperhidrosis with mild rhabdomyolysis that occurred on active duty still has not totally resolved.”   Notably the examiner did not render an opinion as to whether the Veteran’s condition was permanently aggravated by service.     
In a September 2012 letter, private Dr. R.E.M., stated, “The Veteran is a well-known patient in our clinic who we have seen in our office for several years.  There is no diagnosis of hyperhidrosis that we have ever had in our records.” 
In a December 2013 VA addendum medical opinion, the examiner stated, “The Veteran has a history of hyperhidrosis.  This condition existed prior to service.  He had exacerbation of condition while in service in September 2011.  He continues to have the condition but I do not see evidence that the condition was permanently aggravated by service.  Thus, it is less likely than not that hyperhidrosis was permanently aggravated beyond natural disease progression by military service.”   
In the Veteran’s December 2013 VA Form 9, he reported that he did not have hyperhidrosis as a child.  
The Board finds there is clear and unmistakable evidence that the Veteran’s hyperhidrosis preexisted service.  The Veteran complained of sweating and body aches within 3 days of beginning active duty.  Service treatment records include a medical opinion that the Veteran’s condition preexisted service.  Furthermore, the Veteran reported having hyperhidrosis associated with sports as a child.  Although the Veteran has since indicated that the condition did not exist prior to service, the Board finds his statement associated with contemporaneous medical treatment more credible.  The Board has also considered the September 2012 statement from Dr. R.E.M. indicated that the Veteran had been a patient for “several years” and did not have a diagnosis of hyperhidrosis.  However, the statement is too vague to provide any probative value.
The Board finds the evidence is also sufficient to show that the Veteran’s condition was not permanently aggravated beyond natural progression by military service.  The Board finds the December 2013 VA opinion probative to the question at hand.  The examiner considered an accurate history, to include the Veteran’s contentions regarding the onset of symptoms.  The opinion was definitive and supported by a rationale that considered the lay and medical evidence.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  
Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection.  VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991).  The Board finds that the most persuasive evidence of record shows that the Veteran’s preexisting condition was not permanently aggravated beyond the natural progression by service. 
The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise.  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).  Whether the Veteran’s preexisting condition was aggravated by service requires medical expertise to determine.
Notably, in September 2017, the Board remanded this issue to the RO for further development.  The RO was to schedule an examination to obtain an additional opinion as to whether the Veteran’s condition preexisted service and was permanently aggravated by service.  The examinations were scheduled and rescheduled for October 2017, November 2017, and December 2017.  The Veteran failed to report; he has provided no good cause for this failure.  Therefore, any pertinent information that would have been expected from this examination is not available.  As a consequence, this claim must be decided on the evidence of record.  See 38 C.F.R. § 3.655.
(Continued on the next page)
 
Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s hyperhidrosis preexisted service and was not permanently aggravated by service.  Accordingly, entitlement to service connection for hyperhidrosis is not warranted.  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 Veteran’s claim, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).
 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.A. Williams, Associate Counsel  

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