Citation Nr: 1422331 Decision Date: 05/16/14 Archive Date: 05/29/14 DOCKET NO. 09-00 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for acid reflux disorder. 3. Entitlement to service connection for vision problems. 4. Entitlement to service connection for tinea cruris (jock itch). 5. Entitlement to service connection for bilateral tinea pedis (athlete's foot). 6. Entitlement to a rating in excess of 10 percent for right patellar tendonitis. 7. Entitlement to a rating in excess of 10 percent for left patellar tendonitis. 8. Entitlement to higher evaluations for left shoulder rotator cuff tendonitis, rated as 10 percent prior to August 5, 2008 and 20 percent since. 9. Entitlement to higher evaluations for right shoulder rotator cuff tendonitis, rated as 10 percent prior to August 5, 2008 and 30 percent since. 10. Entitlement to higher evaluations for degenerative joint disease (DJD) of the lumbar spine, rated as 10 percent prior to August 5, 2008 and 20 percent since. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1998 to November 2005. This appeal to the Board of Veterans' Appeals (Board/BVA) is from November 2007 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2013, the Board remanded the appeal to allow the Veteran to present testimony at a Central Office hearing. The Veteran testified at a hearing in December 2013, and a transcript of those proceedings is associated with the Virtual VA record. The claims for increased ratings are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A skin disorder of the face and neck, including pseudofolliculitis barbae and tinea versicolor, had its onset during the Veteran's active duty service. 2. The Veteran had in-service symptoms of acid reflux, and has a present diagnosis of gastroesophageal reflux disease, but there is no competent evidence linking the current diagnosis to active duty service. 3. The Veteran's myopia refractive error is congenital and developmental in nature, and is not shown to have been incurred in or aggravated during service. 4. The Veteran's reports of current athlete's foot symptomatology are not credible. 5. The Veteran's reports of current jock itch symptomatology are not credible. CONCLUSIONS OF LAW 1. A skin disorder of the face and neck, including pseudofolliculitis barbae and tinea versicolor, was incurred during active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Gastroesophageal reflux disease is not due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for vision problems have not been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.9 (2013). 4. Athlete's foot was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. Jock itch was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Here, the Veteran was sent a letter in November 2008 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment. The Board notes that the Veteran was scheduled for examinations to address his claims for service connection in April 2012, but that he failed to report for those two examinations in April 2012. Although he testified in December 2013 that he was unaware of that hearing, the Board finds his testimony in that regard to lack credibility. There is no suggestion in the record that the examination notifications were sent to the incorrect address, or that the Veteran's address changed during that time frame. Further, the Board notes that the Veteran had previously failed to report for VA examinations in December 2008 and February 2009; while those examinations were scheduled in conjunction with other claims, the Board considers his statements regarding his unawareness of his April 2012 scheduled examinations in light of his previous missed examinations. Without good cause being shown, his claims will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655(b) (2013). In making this finding, the Board notes that the duty to assist is a two-way street, and the Veteran cannot passively wait for assistance in those circumstances where he may or should have information that is essential to developing his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's statements in support of the claim are of record, including testimony provided at a December 2013 Board hearing. The hearing focused on the elements necessary to substantiate his service connection claims and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further assistance to the appellant is required. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be warranted in the case of a pre-service disability that was aggravated during active duty service. 38 C.F.R. § 3.306. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on the entrance examination report. 38 C.F.R. § 3.304(b). The presumption of soundness is rebutted where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto, and was not aggravated by such service. Id 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). If the evidence is competent, 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. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also 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). Skin Disorder The Veteran has current diagnoses of pseudofolliculitis barbae and tinea versicolor of the chest and neck. While in-service, he received treatment for pseudofolliculitis barbae of the neck and chest, and was given a shaving profile. Per a dermatologist's reports from August and September 2008, the Veteran's skin conditions of the chest and neck began during his military service. With evidence of a current disability, an in-service incurrence of that disability, and a competent nexus between the two, service connection is warranted. Holton, 557 F.3d at 1366. Acid Reflux Disorder The Veteran has a current diagnosis of gastroesophageal reflux disorder (GERD), for which he has been treated with omeprazole. While in service, there is a suggestion of gastroesophageal reflux, the Veteran was not actually diagnosed with a disability. In April 2001, the Veteran complained of "having acid reflux;" the examiner included the differential diagnosis of "[rule out] acid reflux" and prescribed ranitidine. On his July 2002 medical history, the Veteran reported frequent indigestion/heartburn. The "examiner's summary " accompanying that report, completed in August 2002, and based on the Veteran's report (rather than physical examination), noted "GERD." The Board concludes that the examiner's summary was solely based on the Veteran's reports based on the instructions on the form for the examiner, as well as the fact that the same physician conducted an examination on the same date as the completion of the "examiner's summary" and noted a "normal" "abdomen and viscera (include hernia)." The Veteran reports that he was also seen in 2003 and 2005 for acid reflux symptoms. The Board finds that the Veteran had some symptoms of acid reflux during service, but without a diagnosis of any disability, including GERD, prior to his separation from the military. While the August 2002 examiner's identification of "GERD" appears on its face as a diagnosis, the surrounding evidence - including the contemporaneous examination, with normal findings - clearly evidences that the examiner was merely reporting the Veteran's contentions. Unfortunately, as noted above, the Veteran failed to report for the VA examination scheduled in conjunction with this claim. 38 C.F.R. § 3.655. A VA examiner may have determined that the currently diagnosed GERD had its onset during active duty, thus providing the necessary nexus for service connection. The Board acknowledges that the Veteran is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). The Veteran, however, is not competent to diagnose himself with GERD in service in this instance. Generally, a diagnosis of gastroesophageal reflux disorder is not within the competence of a layperson, and a proper diagnosis requires the knowledge and experience of a medical professional, as he does not have the training to differentiate his symptoms from any number of other possible diagnoses. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, under the guidance of Kahana and Jandreau, the only way the Veteran could be competent to relate his GERD to service is if it can be found that his description of his symptoms "support[] a later diagnosis by a medical professional." Id. at 1377. Here, no medical professional has related the Veteran's symptoms to the current diagnosis, or used his report of in-service symptoms in support of the current diagnosis. In sum, the Veteran is not competent to relate his in-service complaints of acid reflux to his current GERD diagnosis, id., and thus there is insufficient evidence of record to link the two. Service connection must be denied. Holton, 557 F.3d at 1366. Vision Problems The Veteran claims that he was first prescribed glasses during boot camp, and that his vision worsened during active service. The Veteran's enlistment examination noted distant vision of 20/100 in the right eye and 20/50 in the left eye, and near vision of 20/30 in the right eye, and 20/20 in the left eye. Importantly, even if the Veteran's assertion that he was first prescribed eyeglasses during service is accurate, the presumption of soundness does not apply in this case, as his impaired vision was noted on his enlistment examination. 38 C.F.R. §§ 3.304(b), 3.306. Further, refractive error of the eyes is not a "disease" within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). An August 2002 examination report does not include uncorrected vision results, but notes that distance vision was corrected to 20/20 bilaterally. Also, the Veteran suffered an eye laceration following an altercation in September 2002, and that he at times had blurry vision in his right eye after that injury. In October 2002, however, his vision was found to have improved. The Veteran indicated at his hearing that at times his vision "clouds over." The Veteran is competent to report his symptoms of cloudy vision and his difficulty seeing, but he is not competent to relate any current "cloudiness" to a 2002 eye laceration. Jandreau, at 1376-77. He is also not competent to identify any worsening of his vision beyond what would be the "natural progression" of his limited eyesight. Such determinations require ophthalmological training that he does not possess. A post-service June 2009 ophthalmology consult provided vision testing results of 20/50 in the right eye, and 20/40 in the left eye. The document did not specifically indicate that the measurement was for the Veteran's distance reading, but the Board notes that the examiner included a diagnosis of myopia, or nearsightedness. Similarly, a February 2012 eye clinic note recorded the Veteran as having visual acuity of 20/50 in the right eye, and 20/50+2 in the left eye, without correction, and a diagnosis of myopia. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error, as it is not (as previously noted) a disability entitled to service connection as it is congenital in nature. 38 C.F.R. §§ 3.303(c), 4.9; VA ADJUDICATION PROCEDURE MANUAL M21- 1MR, pt. III, subpt. iv, ch. 4 § B, 10d. While the Veteran did have an in-service laceration to the eye, and, in the immediate aftermath of that injury, blurry vision, there is no evidence in the record to suggest a permanent worsening of his vision. The evidence demonstrates that the Veteran's vision did not worsen during service due to a superimposed injury, as the current findings are essentially the same, if not better, than they were on his enlistment examination. To the extent that the scheduled April 2012 ophthalmological examination might have provided additional results, such as a medical opinion that the vision symptoms worsened during service, or relating some other vision disorder, such as the Veteran's claimed cloudiness, to service, again the Board observes that he failed to report to that examination. 38 C.F.R. § 3.655. Service connection is not warranted. 38 C.F.R. §§ 3.303, 3.306, 4.9. Athlete's Foot and Jock Itch The Veteran reports that he received treatment for athlete's foot and jock itch while on active duty, including a an instance in 2000 when he was provided a bottle of a clear substance to apply to the affected areas. He claims that the conditions have been chronic to the present. On a July 2002 report of medical history, he indicated that in 2000, he had a case of athlete's foot. In the "examiner's summary," as referenced above in the discussion regarding GERD, the examiner indicated that the Veteran had "chronic tinea pedis." In contrast, however, the August 2002 examination report indicated normal findings concerning the feet. The Veteran is competent to report his in-service symptoms of athlete's foot and jock itch, and the Board finds no evidence to undermine his credibility in that regard. The Veteran testified that he continues to experience the athlete's foot and jock itch symptoms to the present. While he is similarly competent to identify those symptoms, the Board does not find his current complaints to be credible. Specifically, the Veteran referenced VA treatment in 2009, 2010, and 2012; in contrast to his assertions, the record of VA treatment - which includes dermatology consults - does not identify any treatment for a skin condition of the feet or for jock itch. The Veteran claimed that in 2009, his foot condition was so bad that he tore the skin off the top of his feet, yet no foot treatment, or foot diagnoses, is included in the record. While there are skin disorder diagnoses in the record (pseudofolliculitis barbae, tinea versicolor, acanthosis nigricans), there is no suggestion of athlete's foot (tinea pedis) or jock itch (tinea cruris). The Board is not relying on the lack of evidence of medical treatment in making this finding, as such would be improper (see Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007)) and could constitute a Colvin violation (see Kahana, 24 Vet. App. at 434 (citing Colvin v. Derwinski, 1 Vet. App. 171 (1991) for the proposition that the Board cannot make its own medical judgments). Rather, the Board finds the Veteran's assertions of current treatment and symptomatology to lack credibility, because the evidence contradicts his statements that he received treatment for jock itch and athlete's foot following service. Therefore, his claims of current symptomatology have no probative value. As such, there is no evidence of a current disability, and by necessity, no link between any current disability and service. Holton, 557 F.3d at 1366. The Board again stresses the Veteran's unfortunate failure to report for his April 2012 VA examination, which could have provided additional evidence necessary to his claim, such as a current diagnosis, and a nexus to in-service symptomatology. 38 C.F.R. § 3.655. ORDER Entitlement to service connection for a skin disorder of the neck and chest is granted. Entitlement to service connection for acid reflux disorder is denied. Entitlement to service connection for vision problems is denied. Entitlement to service connection for tinea cruris (jock itch) is denied. Entitlement to service connection for bilateral tinea pedis (athlete's foot) is denied. REMAND With regard to the claims for increased ratings for disabilities of the bilateral shoulders, the bilateral knees, and the lumbar spine, the Veteran testified in December 2013 that each of these disabilities had worsened since his most recent VA examination. Therefore, a new orthopedic examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination. In accordance with the latest worksheets for rating disabilities of the thoracolumbar spine, shoulders, and knees, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his disabilities. A complete rationale for any opinions expressed must be provided. 2. After ensuring that the VA examiner fully complied with the directives of this remand, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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 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). ______________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs