Citation Nr: 1752045 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-33 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for allergic rhinitis, claimed as allergies. 3. Entitlement to service connection for a skin condition, to include acne, folliculitis, and atopic dermatitis. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1996 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction is now with the RO in Reno, Nevada. In his November 2013 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge of the Board. A Board hearing was scheduled; however, in May 2016, the Veteran withdrew his hearing request. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2017). In July 2016, the Board remanded the Veteran's appeal for further development, to include affording the Veteran VA examinations in connection with his claims. Subsequent to the Board's remand, in a March 2017 rating decision the RO granted entitlement to service connection for right shoulder disability and bilateral hearing loss. Later, in a July 2017 rating decision, the RO additionally granted entitlement to service connection for a back disability. Therefore, these awards of service connection by the RO are considered full grant of the benefits sought on appeal, and these claims are no longer in appellate status. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)). FINDINGS OF FACT 1. An in-service EKG showed symptoms of sinus bradycardia, but no underlying heart disability; the weight of the competent medical evidence does not show that the Veteran has a currently diagnosed heart disability. 2. Resolving all doubt in favor of the Veteran, his current allergic rhinitis first manifested during his military service. 3. Resolving all doubt in favor of the Veteran, his currently diagnosed skin condition diagnosed as acne, folliculitis, and atopic dermatitis is etiologically related to his in-service diagnosis of acne and folliculitis. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for allergic rhinitis claimed as allergies have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a skin condition, to include acne, folliculitis, and atopic dermatitis, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). (CONTINUES ON NEXT PAGE) Service Connection - Applicable Laws and Regulations Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A grant of service connection requires a finding of current disability that is related to an injury or disease in service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran 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. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The United States Court of Appeals for Veterans Claims has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Heart Disability - Analysis The Veteran asserts that he currently has a heart condition a result of a drowning incident during active duty during which he lost consciousness. During the Veteran's April 1996 enlistment examination, there were no indications of any heart disabilities. The Veteran's service treatment records (STRs) dated September 1996 note complaints of back and chest pain. The Veteran underwent a radiologic examination that revealed a normal cardiomediastinal silhouette. The lung fields were clear and there was no evidence of a pneumothorax. The ribs and osseous structures were unremarkable in appearance and the lung fields were clear with no evident pleural effusions. The impression was normal chest. No other cardiac complaints were noted in service. During his June 1996 separation examination, the Veteran noted that he was in good health checked "no" for any pressure or pain in chest. Post-service private medical treatment records dated in September 2008 show that the Veteran complained of chest pain and was diagnosed with costochondritis. In compliance with the Board's July 2016 remand directives, the Veteran underwent a VA examination in September 2016. The examiner indicated that multiple cardiac examinations in the Veteran's records were all normal. The examiner further stated that an in-service September 1996 electrocardiogram (EKG) revealed sinus bradycardia; however, the examiner indicated that the EKG did not document a diagnosis of a heart condition. The examiner noted the September 2008 diagnosis of costochondritis, but concluded that it was not present during the examination. The Veteran had another EKG done during the examination which showed normal results. He additionally had a chest radiograph with normal results. The VA examiner concluded that the Veteran does not have a current heart disability. On review, the Board finds that the criteria to establish service connection for sleep apnea are not met. In analyzing this claim, the Board recognizes that the Veteran is competent to report his observable symptoms such as pain in the chest; however, his lay statements are not competent to establish that he has a current heart disability, as he is not shown to possess medical training necessary to render a medical diagnosis. Notably, pain alone is not a disability. The Board concludes that the Veteran's lay reports of having a current heart disability that is related to service are outweighed by the highly probative September 2016 VA medical report and opinion finding that the Veteran does not have a current hear disability. The examiner found further that the Veteran's in-service complaints of chest pain resolved. In summary, while recognizing the Veteran's reports of chest pain, there can be no valid claim for service connection in this case, in the absence of competent evidence of a current heart disability. The Board concludes that the Veteran has not presented competent evidence showing that he has a current heart disability. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). The Board further recognizes the September 2008 diagnosis of costochondritis and such diagnosis was not rendered since the beginning of the Veteran's March 2009 claim and during the pendency of the appeal. Nonetheless, even if that diagnosis were present when the claim was filed, the 2016 VA examiner specifically indicated that costochondritis is not shown in STRs and not currently demonstrated. Again, there was no sign of chronic heart disability on current examination. Based on the foregoing reasons and bases, the claim must be denied. In finding so, the Board 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 in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Allergies - Analysis The Veteran asserts that his current allergies are a continuation of his in-service treatment for allergies, to include allergic rhinitis. During the Veteran's April 1996 enlistment examination, there were no indications of any allergies. The Veteran's STRs dated September 1996 note that he complained of nasal and sinus drainage and was assessed with hay fever and allergic rhinitis. Additional STRs dated in October 1996 show that the Veteran was prescribed allergy and anti-inflammatory medications. He separated from service in November 1996. Post-service private treatment notes dated August 1998 show complaints of nasal congestion and nose drainage. The physician indicated that the Veteran had a past history of allergies. Upon examination, it was noted that the Veteran's face was tender to palpation of the maxillary sinus area. Private treatment notes dated September 2008 indicate that the Veteran had nasal allergies, which included constant sneezing, itching in his nose, watery eyes, and some clear and occasionally greenish drainage from the nose. Later that month the Veteran was diagnosed with sinusitis/pharyngitis and allergic rhinitis/seasonal allergies. The physician noted that the Veteran had had severe allergies in the past. In compliance with the Board's July 2016 remand, the Veteran underwent a VA compensation examination in September 2016. The examiner confirmed a diagnosis of allergic rhinitis, but opined that the condition was not chronic in nature. While acknowledging the in-service diagnosis of chronic rhinitis, the examiner stated that the Veteran's records do not show that the condition was chronic and therefore concluded that there was "no permanent residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service." On review, the Board finds that service connection for allergic rhinitis is warranted. The Veteran is currently diagnosed with allergic rhinitis. His STRs show treatment for allergic rhinitis during service and the Veteran has competently and credibly described rhinitis symptoms ever since service. The Board acknowledges the unfavorable September 2016 medical opinion, but finds it inadequate to decide the claim, as it is conclusory in nature and does not address the Veteran's probative lay contentions of continuing allergy symptoms since service. In other words, the examiner disregarded the Veteran's competent reports of allergies symptoms since service and instead impermissibly relied on the lack of documented records to provide an opinion unfavorable to the claim. Accordingly, the Board finds that the September 2016 VA examiner's opinion is outweighed by the Veteran's highly probative lay assertion that his allergic rhinitis has been continuous since separation. Overall, the Board finds the Veteran's report of symptoms since service credible and supportive of his service connection claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (Fed. Cir. 2006). This evidence provides a plausible basis to conclude that the Veteran's allergic rhinitis first manifested during his military service. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."). As such, the Board finds that service connection is warranted. Acne - Analysis The Veteran also asserts that his current skin conditions are a continuation of his in-service treatment for acne, folliculitis, and erythematous papules. During the Veteran's April 1996 enlistment examination, there were no indications of any skin conditions. The Veteran's STRs dated June 1996 note that the Veteran complained of acne and was prescribed medication for it. Additional STRs dated in September 1996 note the presence of acne and mild folliculitis and erythematous papules. Moreover, in October 1996, the Veteran was diagnosed with folliculitis. During his separation examination, the Veteran noted that he was still taking the acne medication. Private treatment notes dated August 1998 note the Veteran's complaints of acne, and state that he was prescribed tetracycline in the past. The physician diagnosed the Veteran with acne and prescribed doxycycline. Private treatment notes dated September 2005 note moles on the Veteran's face and chin as well as shaving nicks. In compliance with the Board's July 2016 remand, the Veteran underwent a VA examination in September 2016. The examiner confirmed diagnoses of atopic dermatitis and folliculitis indicating that both disabilities were diagnosed in 1980 (based on the Veteran's April 2009 statement that he had acne prior to service). Nevertheless, in the examination report, the examiner noted that the onset of symptoms was in June 1996 during boot camp where the Veteran noticed a rash and bumps on his skin. The examiner further noted that there was one open skin follicle on the left nasal area which was consistent with "folliculitis secondary a reaction to excoriation," as well as scattered areas of folliculitis on the abdominal wall. There were no signs of acne with comedones, acne scars or papules during the examination. The examiner opined that the current folliculitis was not related to service, since his review of the Veteran's private treatment records post-service did not show a chronic condition related to service. The examiner concluded that although there are STRs showing treatment of acne, "no permanent residual or chronic disability subject to service connection" was shown. On review, the Board finds that service connection for a skin disability is warranted. The Veteran is currently diagnosed with acne, folliculitis and dermatitis. Evaluation of his skin at service entry was normal and during service he was treated for acne and folliculitis. Here again, the Board finds inadequate that the VA examiner's opinion as it is conclusory and does not consider the Veteran's lay statements with regards to his skin conditions since service. As a layperson, the Veteran is competent to testify that he has been experiencing an ongoing skin disability and the Board has no reason to doubt his credibility in that regard. The Veteran's lay statements are consistent with his STRs and his post-service diagnoses of skin conditions. This evidence of continuity of symptomatology tends to establish that the Veteran's current disorder is the same disorder that was first observed in service. See Lynch v. Ne. Reg'l Commuter R.R. Corp., 700 F.3d 906, 915 (7th Cir. 2012) ("[E]xpert testimony may be necessary where some special expertise is necessary to draw a causal inference because of its esoteric nature, but that in general the causal sequence can be inferred from circumstantial evidence, expert testimony, or common knowledge."); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's skin condition diagnosed as acne, folliculitis, and atopic dermatitis, is related to active service. Therefore, service connection is granted. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a heart disability is denied. Entitlement to service connection for allergic rhinitis (claimed as allergies) is granted. Entitlement to service connection for acne, folliculitis, and atopic dermatitis is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs