Citation Nr: 1416423 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 12-10 135 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an evaluation in excess of 10 percent for the service-connected degenerative joint disease (DJD) of the lumbosacral spine with radiculopathy of the right extremity (back disability). 3. Entitlement to a compensable evaluation for the service-connected hemorrhoids. 4. Entitlement to service connection for residuals of a scrotal mass, status post excision. 5. Entitlement to service connection for a bilateral hearing loss disability. 6. Entitlement to service connection for a bilateral foot disorder, to include tinea pedis. REPRESENTATION Appellant represented by: Paul B. Burkhalter, Esq. WITNESSES AT HEARING ON APPEAL The Veteran, his Spouse and an Observer ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1984 to January 1985 and from July 1990 to January 2010. He also has unverified Reserves service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the RO in Salt Lake City, Utah. RO jurisdiction has since been transferred to the RO in Waco, Texas. By way of an April 2012 rating decision, the RO granted service connection for right knee patellofemoral syndrome with a 10 percent evaluation. In November 2012, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via videoconference technology; a transcript of that hearing is of record. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. There are no uploaded documents in the Veterans Benefits Management System (VBMS) at this time. The issue of an increased evaluation for the service-connected right knee disorder has been explicitly raised by the record (see November 2012 Board Hearing Transcript), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) at first instance. Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. The issues of an increased rating for the service-connected PTSD, back disability and hemorrhoids and the issue of service connection for a bilateral hearing loss disability are being remanded to the RO. FINDINGS OF FACT 1. The Veteran is shown as likely as not to have current residuals of a scrotal mass that was excised during active service. 2. The currently demonstrated bilateral foot disorder to include tinea pedis as likely as not had its clinical onset the Veteran's active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by the residuals of a scrotal mass, status post excision, is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 2. By extending the benefit of the doubt to the Veteran, his bilateral foot disability to include tinea pedis is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of the VA's duty to notify and assist the Veteran is not required at this time. Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465 (1994). The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Residuals of Scrotal Mass The Veteran avers that he has the residuals of a scrotal mass which was excised in service. The service treatment records from May 2009 show complaints of a lump or growth in the testicular region. Such growth was found to be abnormal and it was excised in service. The Veteran provided competent and credible testimony as to the current existence of residuals from the scrotal mass, post excision. He described the residuals as a rash in the spot of the excision. He reported being told that he had tinea cruris, or a rash in the groin region and had previously treated it with cream. The Board notes that the Veteran is competent to testify that he currently has a rash in the same area where his scrotal mass was excised, and he is competent to testify as to the duration of his symptomatology (that he has had such symptoms since service). See Layno v. Brown, 6 Vet. App. 465 (1994) (concluding that lay witnesses are competent to provide testimony or statements relating to facts of events that the lay witness observed or that is within the realm of his/her personal knowledge). A May 2011 VA examination noted the history and removal of a painful lump in the scrotum. Although the examiner noted that there were no residuals from the excision, the Veteran's competent and credible testimony serves to confirm that such residuals in the form of a rash exist. The Board finds the Veteran's statements to hold greater probative value. As there is a current diagnosis of a skin rash as residuals of the excision of the scrotal mass in service, and competent and credible statements from the Veteran as to such symptoms persisting since service, service connection for residuals of a scrotal mass, post excision, is warranted. Bilateral Foot Disorder The Veteran contends that he has had a current foot disorder as a result of service that has persisted since his diagnosis of tinea pedis in service. The service treatment records from February 2000 confirm a diagnosis and treatment of tinea pedis in service. The treatment notes indicated associated symptoms of flaking fungal changes over the sole with cracked heels. A February 2010 VA examination report indicates that the Veteran has chronic athletes' foot. Another VA examination in May 2011 revealed that the Veteran's feet were severely cracked with dry skin, particularly in the heels. The examiner, however, noted that it did not look like tinea pedis. The Veteran provided competent and credible testimony as to his foot disorder. He testified that his feet were cracked and bled when he removed his boots, particularly in the summertime. He applied a cream daily. He indicated that he had had those very symptoms since service as a result of having his feet wet and not drying out properly as he carried out his duties. The Board finds that the symptoms reported by the Veteran in service are consistent with the symptoms that he has reported to the VA examiners and his testimony. The Veteran is competent to testify as to observable symptomatology, its onset and duration. See Layno, 6 Vet. App. at 469. The Board finds that his statements are consistent and credible. As the evidence is in relative equipoise, all reasonable doubt must be resolved in the Veteran's favor. Thus, as there is evidence of a current diagnosis of a foot disorder that has continued since service, service connection for a bilateral foot disorder, to include tinea pedis, is warranted. ORDER Service connection for the residuals of a scrotal mass, post excision is granted. Service connection for a bilateral foot disorder, to include tinea pedis, is granted. REMAND As noted in the Introduction, the Veteran testified at a personal hearing in November 2012. The nature and severity of symptoms described by the Veteran during the course of his testimony suggests a worsening of his PTSD, back, and hemorrhoid disabilities since the last VA examination in May 2011. For this reason, the Board finds that this matter must be remanded to obtain a new VA examination to ascertain the current nature and severity of these disabilities for rating purposes. Furthermore, we note that the Veteran contends that his hearing has worsened since the last VA audiological examination in February 2010. Previously, he has not established a VA hearing loss disability pursuant to VA regulations. As the current state of his disability may have changed, a new audiological examination is warranted to ascertain the current nature and likely etiology of any hearing loss disability found. Prior to obtaining an examination, any and all outstanding relevant treatment records must be obtained and associated with the file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to have him identify any outstanding records of pertinent medical treatment from VA medical facilities referable to the treatment of his PTSD, back disability, hemorrhoids, and hearing loss (he only utilizes VA health care facilities). Copies of any such records should be obtained and associated with the record. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the development outlined in Item (1) is completed, the Veteran should be afforded a VA examination to determine the current severity of his service-connected PTSD. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should comment on the severity of the Veteran's PTSD and report all signs and symptoms necessary for rating the disability under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. The examiner should also review and discuss Dr. S.M.'s findings regarding such impairment (October 2012). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The RO also should have the Veteran scheduled for VA orthopedic and neurological examinations in order to ascertain the nature and current severity of the service-connected back disability. The claims file should be made available to the examiner for review in connection with the examination. All clinical and special test findings should be clearly reported, and pertinent orthopedic and neurological findings should be reported. The examination of the spine should include appropriate testing including range of motion studies. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination. The examiner should specifically state if ankylosis and muscle spasm are present. The examiner also should report any specific information as to the frequency and duration of incapacitating episodes in the past twelve months, and a description of all neurologic manifestations, to include, but not limited to, radiating pain into an extremity, and bowel or bladder impairment. All appropriate neurological tests and studies, to include MRI, EMG and a nerve conduction study should be accomplished (with all findings made available to the examiner prior to completion of the report), and all clinical findings should be reported in detail. If the examiner finds that any such testing is not required to fully evaluate the current extent of the service-connected low back disability this must be clearly stated and fully explained. The examiner should identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the service-connected back disability. The examiner should also offer an opinion as to whether the Veteran has any separately ratable neurological residual, such as radiculopathy as a manifestation of the service-connected low back disability. In addition, the examiner should expressly address the etiology of any numbness/radiculopathy that the Veteran describes in his leg(s). He/she should note the previous reports of radicular symptomatology of record, to include his November 2012 Board hearing testimony. If applicable, the examiner should provide an assessment as to whether any impairment of the nerves is best characterized as resulting in mild, moderate, moderately severe or severe incomplete paralysis; or complete paralysis. The examiner should set forth all examination findings and the complete rationale for the conclusions reached in his/her report. 4. The Veteran also should be scheduled for a VA examination to determine the current nature and severity of the service-connected post-operative hemorrhoids. Specifically, the examiner should state whether the Veteran currently has hemorrhoids, and if so, state whether the Veteran's hemorrhoids are mild or moderate, whether large or thrombotic, whether they are irreducible, and whether there is excessive redundant tissue evidencing frequent recurrences. The examiner should also state where there is persistent bleeding with secondary anemia, or whether fissures are present. The examiner should note the frequency of the bleeding episodes, if any. The examiner should also include a detailed account of all manifestations of rectal pathology found to be present. The examiner in this regard should discuss whether there is any fecal leakage, and if so, the frequency and severity of such leakage, and whether or not it necessitates wearing an absorbent pad. If fecal leakage is found, the examiner should also ascertain the onset of such leakage post-surgery. A clear rationale for all opinions should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims file must be made available to the examiner for review. 5. Finally, the RO should have the Veteran scheduled for a VA audiology examination to determine the nature and likely etiology of any current bilateral hearing loss disability. The claims file must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran the examiner is asked to determine whether it is at least as likely as not (probability of 50 percent) that any current hearing loss disability is related to the Veteran's noise exposure in active service. The examiner must comment upon the Veteran's military occupational specialty during his period of active service and testimony as to noise exposure during service. A clear rationale for all opinions would be helpful. If the examiner is unable to provide a rationale he or she should explain why. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. 6. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 7. When the development requested has been completed, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs