Citation Nr: 1755067 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-33 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right arm condition. 2. Entitlement to service connection for a left arm condition. 3. Entitlement to service connection for a lumbar spine condition. 4. Entitlement to service connection for a right knee condition. 5. Entitlement to service connection for a left knee condition. 6. Entitlement to service connection for hepatitis C. 7. Entitlement to service connection for a skin condition. REPRESENTATION Appellant represented by: Vivian Richardson ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran service on active duty from February 1971 to May 1973. He apparently immediately re-enlisted. An October 1980 VA administrative decision noted that service from February 18, 1971 through February 17, 1974 was considered honorable and could be used for VA benefits purposes. The period from February 18, 1974 through February 8, 1979 is considered dishonorable for VA purposes, by reason of discharge by General Court Martial. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board in July 2016 remanded the appealed claims for additional development. They now return to the Board for further review. The issues of entitlement to service connection for right and left knee conditions are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran's right arm condition, medically identified as right shoulder impingement syndrome, manifested in service or is otherwise causally related to service. 2. The most probative evidence is against a finding that the Veteran's left arm condition, medically identified as left shoulder impingement syndrome, manifested in service or is otherwise causally related to service. 3. The most probative evidence is against a finding that the Veteran's lumbar spine disorders, medically identified as osteoarthritis and degenerative disc disease, manifested in service or are otherwise causally related to service. 4. The evidence does not support the presence of arthritis of the lumbar spine within the first post-service year. 5. The most probative evidence is against a finding that the Veteran's hepatitis C was contracted in service or is otherwise causally related to service. 6. The most probative evidence of record indicates that the Veteran's does not have a chronic skin condition, including pseudofolliculitis barbae. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a right arm condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The requirements for establishing service connection for a left arm condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The requirements for establishing service connection for a lumbar spine condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). 4. The requirements for establishing service connection for a skin condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 5. The requirements for establishing service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veteran's Claims Assistance Act Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by a letter in May 2008. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including VA and private treatment records and VA examination reports. The Board also notes that actions requested in the prior remand have been undertaken. Pursuant to the Board's July 2016 remand instructions, VA treatment records and SSA records were obtained, and the Veteran was afforded an adequate VA examination addressing the claimed disabilities and implicated medical questions. A copy of the notice of disagreement from March 2010 as requested by the Board could not be obtained and no reply was received from the Veteran when he was asked to submit a copy he may have. Hence, there is no reasonable possibility that that document may be obtained. Remand development was nonetheless substantially completed, to the extent feasible. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran essentially contends that he developed his claimed disabilities during active service, resulting in his current claimed conditions. As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with impingement syndrome of the right and left shoulders, osteoarthritis and degenerative disc disease of the lumbar spine, and hepatitis C. Accordingly, the first criterion for establishing service connection has been met for these disorders. The question becomes whether these conditions are related to service. With regard to the claim for service connection for a skin condition, the Veteran was treated for pseudofolliculitis barbae in service, and no current, related skin condition is shown by the record, as discussed below. The Veteran's honorable period of service for VA purposes was from February 1971 to February 1974. This was followed by a dishonorable period of service for VA purposes. The status of these periods of service is not the subject of appeal. Hence, any bases of service connection must relate to the first period of service, and any relationship to the second period of service cannot serve to support the claims. Left and Right Arm Conditions and Lumbar Spine Condition Service treatment and examination records include no records of complaints, treatment, injury, or medical findings pertaining arms or upper extremities, and there is no record of any of disability of these parts for many years following service. As there is no competent evidence of arthritis affecting the arms or lumbar spine in service or within one year following discharge from service, competent evidence linking a current condition with service is required to establish service connection. Upon VA examinations afforded the Veteran in November 2016, the claimed disabilities were identified by the examiner. The upper extremity conditions were diagnosed as bilateral shoulder impingement syndrome. The Veteran asserted that he had gradual onset of shoulder pain over the course of service due to repetitive use injuries from long marches wearing heavy packs, with the shoulder pain treated conservatively. The Veteran associated the condition with progressively increasing pain since that time. Current complaints included difficulty with both lifting and overhead motion of the arms. At the November 2016 examination, lumbar spine disorders were diagnosed as osteoarthritis and degenerative disc disease. The Veteran asserted that his lumbar spine disorder was related to overuse in service including wearing a heavy pack, and that he had progressing back pain ever since service. The examiner found some limitation of motion of the thoracolumbar spine as well as some reduced strength in the lower extremities, but no signs or symptoms of radiculopathy. The examiner opined that it was not at least as likely as not that the Veteran's bilateral shoulder and lumbar spine disabilities were caused by in-service injury, event, or illness. In support of this opinion, the examiner noted the absence of any record of lumbar spine or shoulder injury or complaints of disability in service. Not noted at the November 2016 examination but reflected in VA treatment records in August 2016 is the Veteran's history of a brain hemorrhage in June 2016 resulting in a motor vehicle collision, which in turn resulted in damage to the lumbar spine, with hematoma at L4 and resulting weakness in some nerves below the lesion site. However, treatment records also reflect that these acute changes are independent of degenerative changes in the lumbar spine which existed prior to the brain hemorrhage. There is no evidence that knowledge of the motor vehicle accident in 2016 and its effects would have caused the November 2016 examiner to provide a different opinion regarding the lumbar spine or shoulders. While the Veteran believes that his current arm conditions and lumbar spine condition are related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. 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). In this regard, the diagnosis and etiology of musculoskeletal or neuromuscular or neuropathic disorders are matters not capable of lay evaluation, and require medical expertise to determine. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (arthritis is shown by x-ray). Accordingly, the Veteran's opinions as to the diagnosis or etiology of his right and left shoulder impingement syndromes and osteoarthritis and degenerative disc disease of the lumbar spine are not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disabilities are also matters that also require medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("[a]lthough the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with"). Thus, the Veteran's own opinions regarding the etiology of his current right and left shoulder impingement syndromes and osteoarthritis and degenerative disc disease of the lumbar spine are not competent medical evidence. The Board finds the opinions of the VA examiner to be significantly more probative than the Veteran's lay assertions. The Board finds the November 2016 examiner's opinions regarding impingement syndrome of the shoulders and degenerative conditions of the lower back to be entirely consistent with and supported by the balance of competent and credible evidence of record. Hence, the preponderance of the evidence is against right and left shoulder impingement syndromes and lumbar spine osteoarthritis and degenerative disc disease having developed in service or otherwise being causally related to service, and is against arthritis of the lumbar spine having been present within the first post-service year. Accordingly, service connection is not warranted for these claimed conditions. 38 C.F.R. §§ 3.303, 3.307, 3.309. Hepatitis C Upon VA examination in November 2016, the examiner noted that service treatment records revealed a history of heroin abuse, with a rise in SGOT secondary to heroin overdose in December 1975. Thus, while the Veteran reported at the examination that he received an initial diagnosis of hepatitis around 1975 or 1977, this would be consistent with hepatitis associated with heroin overdose. The examiner noted that the record reflected that hepatitis C was not diagnosed until December 2015, and on this basis the examiner opined that it was not at least as likely as not that the Veteran contracted hepatitis C in service. (For purposes of this opinion, the examiner considered the Veteran's creditable service for VA purposes, not the dishonorable service subsequent to February 1974.) The balance of the record is consistent with the findings and opinion of the November 2016 examiner. Records from the recognized period of service ending in February 1974 do not reflect the Veteran suffering from hepatitis or otherwise contracting the disease. Records following the Veteran's recognized period of service reflect heroine abuse. The elevated SGOT incident referenced by the November 2016 examiner is supported by a record of hospitalization in January 1976 for weakness in the context of known recent heroin abuse, with the elevated SGOT then interpreted as a transient phenomenon associated with the heroin use which would be expected to return to normal once the Veteran stopped using heroin. The elevated SGOT was then specifically noted to not represent active hepatitis, and the Veteran was then noted to have denied previous liver problems or hepatitis. While the Veteran believes that his hepatitis C is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of hepatitis C are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinions as to the diagnosis or etiology of his hepatitis C are not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current hepatitis C are also matters that also require medical expertise to determine. See Clyburn v. West, 12 Vet. App. at 301. Thus, the Veteran's own opinions regarding the etiology of his current hepatitis C are not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. The Board finds the balance of the evidence of record consistent with and supportive of the November 2016 VA examiner's opinion. Hence, the evidence preponderates against the Veteran having contracted hepatitis C in service and against the Veteran's hepatitis C otherwise being causally related to service. Skin condition Service treatment records document a shaving profile in November 1975 for pseudofolliculitis barbae. Post service records do not document ongoing care for pseudofolliculitis barbae. Upon VA examination in November 2016, the examiner identified no skin condition, including no pseudofolliculitis barbae. The examiner concluded that it was not at least as likely as not that the Veteran had a skin condition that was related to service based on the absence of evidence of a skin condition, namely pseudofolliculitis barbae, persisting up to the present time. VA treatment records from 2016 also reflect treatment for an irritated mole under the left eye. However, there is no indication that this mole relates to service, and the Veteran has not so asserted. While the Veteran believes that he has a skin condition related to his pseudofolliculitis barbae in service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of a chronic skin condition, beyond mere observation, are matters not capable of lay observation, and require medical expertise to determine. Accordingly, the Veteran's opinions as to the existence, diagnosis, or etiology of any current skin condition are not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to a current skin condition are also matters that also require medical expertise to determine. See Clyburn v. West, 12 Vet. App. at 301. Thus, the Veteran's own opinion regarding the etiology of any current condition as related to pseudofolliculitis barbae present in service is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. The preponderance of the evidence is against a claimed skin condition being present during the claim period. Because this element of the Veteran's claim - current disability - is not met, no further discussion of the other elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (absence of any one element of claim will result in denial of service connection). The claim is denied based upon the absence of a current disability during the claim period. In reaching the above conclusions for all the Veteran's appealed claims for service connection, 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 claims, that doctrine is not applicable to the Board's adjudication of the issues decided herein. 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, 55-56 (1990). ORDER Service connection for a right arm condition is denied. Service connection for a left arm condition is denied. Service connection for a lumbar spine condition is denied. Service connection for hepatitis C is denied. Service connection for a skin condition is denied. REMAND Right and Left Knee Conditions Service treatment records reflect findings and treatment for chondromalacia patella and unstable knees over multiple dates in 1975. However, these findings and treatments were during his second period of service, which is dishonorable for VA purposes and benefits cannot be granted based on that second period of service. There are no records of treatment or examination during the first period of service reflecting difficulties with the knees. The Veteran was afforded a VA examination in November 2016 addressing the knees, and the examiner provided an opinion that it was at least as likely as not that the Veteran's bilateral patellofemoral pain syndrome was related to service, but based this opinion on the treatment records for the knees in 1975, which period of service cannot serve to support the claims. Hence the VA examiner's opinions are non-probative, as based on the inaccurate factual premise that the Veteran's service in 1975 may support the claim. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The VA examination is therefore inadequate, and an addendum or new examination must be afforded the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. The claims file must be returned to the VA examiner who conducted the November 2016 examination addressing claimed right and left knee disabilities. The examiner must be informed that only the Veteran's service from February 1971 to February 1974 may be considered creditable service for VA benefits purposes, due to the Veteran's dishonorable discharge from his subsequent period of service by reason of General Court Martial. Accordingly, the examiner must review the record and provide a new opinion for each identified disorder of each knee, addressing whether it is at least as likely as not (a 50 percent probability or greater) that the disorder developed during the Veteran's honorable period service from February 1971 to February 1974 or is otherwise causally related to that honorable period of service. The examiner must provide a complete explanation for each opinion provided. 2. After undertaking the development above, the Veteran's claims for service connection for right and left knee conditions should be readjudicated. If the benefits sought remain denied, the vet and his representative should be furnished a supplemental statement of the case and given an appropriate period to respond thereto before the case is returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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 2014). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs