Citation Nr: 1745516 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 06-15 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a bilateral hip disability. 3. Entitlement to service connection for a respiratory condition. 4. Entitlement to an initial rating initial rating greater than 20 percent for lumbar degenerative disc disease/degenerative joint disease and minimal L5 grade I spondylolisthesis. 5. Entitlement to a compensable rating for tinea pedis and tinea cruris. 6. Entitlement to an earlier effective date for a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, his brother ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel FINDINGS OF FACT 1. The Veteran's right shoulder disability is not etiologically related to an in-service injury, incident, or disease, to include his 1969 motor vehicle accident or as secondary to his service-connected left shoulder disability. 2. The Veteran's bilateral hip disability is not etiologically related to an in-service injury, incident, or disease, to include his 1969 motor vehicle accident or as secondary to his service-connected thoracolumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154, 5107, (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.310 (2016). 2. The criteria for service connection for a bilateral hip disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154, 5107, (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 through September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated January 2005 and November 2014. The Veteran appeared before the undersigned Veterans Law Judge in an October 2015 videoconference hearing. A transcript is of record. In a February 2016 decision, the Board remanded the above-listed issues for further development. That development having been completed to the extent possible, the matter is again before the Board for further appellate review. The issues of entitlement to service connection for a respiratory condition, entitlement to an initial rating greater than 20 percent for a thoracolumbar spine disability, entitlement to an increased rating for tinea pedis and tinea cruris, and entitlement to an earlier effective date for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). Pursuant to the February 2016 remand instructions, the RO sent the Veteran a request to authorize the RO to obtain medical records from the Salt River Project and Dr. Boseman. The RO sent the Veteran a VA Form 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs) in March 2016. No reply was received from the Veteran. In September 2016, the Veteran's representative stated the Veteran had not received a request for medical records. In October 2016, the RO again sent the Veteran a VA Form 21-4142 and a VA 21-4142a (General Release for Medical Provider Information to the Department of Veterans Affairs). Again, no reply from the Veteran was received. Accordingly, the Board is satisfied that the RO made reasonable efforts to fulfill the February 2016 remand directives. The duty-to-assist is not a one-way street. The mail sent to the Veteran was not returned, so there is no indication VA has an old address for him, and he has not responded twice. As such, VA has substantially complied with the remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall, 11 Vet. App. at 271. The Veteran contends his current right shoulder and bilateral hip disabilities are etiologically related to his active duty service. Primarily, he argues that his disabilities were caused by his motor vehicle accident in August 1969. Alternatively, he argues that his right shoulder disability is secondary to his service-connected left shoulder disability, and his bilateral hip disability is secondary to his service-connected thoracolumbar spine disability. Service treatment records do not indicate any complaints of or treatment for right shoulder or bilateral hip conditions. Medical records do not indicate the Veteran has a currently diagnosed left hip disability. Although he has consistently complained of bilateral hip pain, and was diagnosed with arthritis of the right hip, x-ray reports from April 2003 note the Veteran's left hip was normal. The November 2016 VA examiner noted the Veteran was diagnosed with bilateral hip osteoarthritis, but this statement is not supported by the record. See February 2016 VA medical record (noting the bilateral hip x-ray was unremarkable). Pain alone, without an underlying diagnosis or functional impairment, is not a service connectable disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, dismissed in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Initially, the Board notes the Veteran was not diagnosed with degenerative arthritis of his right hip until 1994, 25 years after separation from active duty. Similarly, he was not diagnosed with mild degenerative changes of his right shoulder until December 2002, approximately 33 years after separation from active duty. Therefore, the record does not reflect that the Veteran was diagnosed with arthritis of either the right shoulder or right hip to a compensable degree within one year of separation from active duty. There is also no evidence showing manifestations of arthritis during or within the first year after service. Thus, the presumptive service connection provision of 38 C.F.R. §§ 3.307(a)(3) and 3.309(a) for chronic disabilities are not applicable. The Veteran was afforded a VA examination to determine the etiology of his right shoulder and bilateral hip disabilities in September 2003. He reported intermittent pain in his right shoulder for approximately the last 10 years. He also reported he had pain in both hips since his motor vehicle accident in 1969, which increased until 1996 when he had his right hip replaced. The examiner opined neither the Veteran's right shoulder disability nor his bilateral hip disability were caused or aggravated by his service-connected left shoulder disability because those complaints happen with normal aging, heavy work, and it would have been unusual for the disabilities to be associated with the left shoulder AC joint injury. A VA consult request from June 2003 noted the Veteran had been diagnosed with bilateral impingement syndrome and had significant injuries to both shoulders. However, the consult request does not state whether the "significant injuries" were due to service, or whether the report of shoulder injuries was based on objective medical evidence. The Veteran was afforded a second VA examination for his right shoulder and bilateral hip disabilities in January 2009. He reported his right shoulder pain began approximately three months following his August 1969 motor vehicle accident, and his left hip pain began seven to ten years following the accident. The examiner noted the Veteran had previously reported his right shoulder pain began in approximately 1993, not immediately following the motor vehicle accident. The examiner agreed with the conclusions of the September 2003 VA examination, opining that the likely etiology of the right shoulder and bilateral hip disabilities could be related to either aging or heavy work. Further, the evidence that the Veteran sustained multiple abrasions and contusions in his 1969 accident did not influence the examiner's opinion, as they were merely abrasions or contusions. Finally, there was no evidence the Veteran injured his hips in his accident, and there was no intervening treatment until 20 to 25 years after the accident. The Board finds the September 2003 and January 2009 VA opinions to be highly probative. The examiners, after reviewing the claims file and examining the Veteran, opined it was less likely than not that his right shoulder disability and bilateral hip disability were either directly related to service or secondary to his August 1969 motor vehicle accident. Both examiners determined it was more likely that his right shoulder and bilateral hip conditions were a result of his age and occupation. The Veteran was afforded a VA examination to evaluate the severity of his left shoulder disability in July 2010. The Veteran's representative has argued that this VA examination is inadequate because the Veteran's claims file was not available for review. Although the examiner evaluated the range of motion for both the Veteran's left and right shoulders, an opinion was only rendered for the left shoulder. As the examiner offered no opinion on the Veteran's right shoulder disability or his bilateral hip disability, the adequacy of this examination is not relevant on these claims. In November 2015, the Veteran's chiropractor submitted a statement asserting the Veteran's current bilateral hip disability was due to his service-connected thoracolumbar spine disability. However, the Board does not find this statement to be probative evidence of a nexus between the Veteran's bilateral hip disability and his active duty service as the statement provides no rationale explaining the medical rationale of how the Veteran's thoracolumbar spine disability caused his bilateral hip disability. A bare conclusion, even from a medical professional, is not sufficient evidence of nexus. In November 2016, the RO obtained a VA medical addendum opinion to determine whether the Veteran's bilateral hip disability was caused or aggravated by his service-connected thoracolumbar spine disability. The examiner opined the Veteran's bilateral hip disability was less likely than not caused or aggravated by his service-connected thoracolumbar spine disability. A review of the pertinent medical literature showed no association between low back degenerative disease and osteoarthritis of the hips. The examiner noted the Center for Disease Control and Prevention literature on arthritis found that osteoarthritis of the hips occurs more often in people over the age of 45, and approximately 50 percent of reported osteoarthritis may be genetically determined. The CDC listed risk factors for arthritis including excess body mass, joint injury, knee pain, and occupation. The Board finds this opinion to be highly probative as it clearly explains that pertinent medical literature has found no association between degenerative back disabilities and the development of bilateral hip degenerative changes. The Veteran appeared before the undersigned in an October 2015 videoconference hearing. He testified that his chiropractor and the physician at his former employer told him he put too much strain on his right shoulder in order to compensate for his injured left shoulder. There are no medical records indicating the Veteran's right shoulder disability is either directly related to his active duty service or secondary to his service-connected left shoulder disability. Chiropractor notes documenting treatment from 1982 through 1988 do not show the Veteran was ever treated for a shoulder disability, and, as noted above, records from his former employer could not be obtained because he did not authorize VA to do so. In support of his claim, the Veteran submitted several written statements from his family members that he experienced shoulder pain following his motor vehicle accident. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, musculoskeletal issues, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Musculoskeletal issues require specialized training and medical diagnostic testing for a determination as to diagnosis, and they are not susceptible of lay opinions on etiology. There are many different possible musculoskeletal issues, and a layperson is not competent to diagnose among them or to provide an etiology. Therefore, the Board finds that the statements of the Veteran and his family members cannot be accepted as competent evidence. In sum, the Board finds the elements of service connection for right shoulder and bilateral hip disabilities have not been met. Accordingly, service connection for the claimed disabilities 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 claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a bilateral hip disability is denied. REMAND In its February 2016 remand, the Board instructed the RO to schedule the Veteran for an examination to determine the severity of his service-connected back disability. The examiner was directed to "specifically address whether the Veteran has any associated neurological abnormality, including bilateral radiculopathy in his lower extremities." The August 2016 VA examiner provided no medical history addressing the Veteran's complaints of radicular pain, and although it was noted in the exam report that the Veteran did not experience radiculopathy, there was no further explanation or diagnostic testing. The Veteran's private medical records consistently note he experienced radiculopathy. See Private Medical Records dated April 2003, May 2003, July 2003, March 2004, and October 2014. In May 2003, the Veteran's private physician submitted a statement asserting "[his] condition has become chronic and degenerative in nature affecting his lumbar spine, with secondary neurological complications." Further, a May 2003 electrodiagnostic evaluation indicated evidence consistent with "probable lumbosacral spinal stenosis or multi-level lumbosacral radiculopathy." As the opinion regarding the severity of the Veteran's service-connected thoracolumbar spine disability is inadequate, a remand is necessary to obtain an adequate opinion and thus fulfil VA's duty to assist the Veteran in obtaining evidence to substantiate his claims. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Stegall, 11 Vet. App. at 271. The Veteran claims his respiratory condition is secondary to exposure to Agent Orange in Vietnam. Although asthma and chronic obstructive pulmonary disease (COPD) are not illnesses presumed to be caused by exposure to Agent Orange, the Veteran can still establish service connection on a direct basis. Service treatment records dated October 1967 indicate the Veteran complained of allergies, but he had no prior history of asthma. Later in October 1967, the Veteran complained of trouble breathing. He continued to report he had trouble breathing in November and December 1967. Because there is evidence suggesting the Veteran suffered from a respiratory condition while in service, and the Veteran currently is diagnosed with severe COPD, the Board finds a VA examination is warranted to address whether this condition was incurred in military service, to include as secondary to exposure to Agent Orange. In July 2014, the Veteran was treated with topical steroids for his skin condition, which began on his back and moved over his upper chest, both arms, and abdomen. The Veteran was afforded a VA examination to evaluate the severity of his tinea cruria and tinea pedis in October 2014. The examiner noted the Veteran used two topical steroid creams, one for fewer than six weeks, and the other for six weeks or more but not constant. Although the November 2016 VA examiner noted the Veteran did not use either oral or topical corticosteroids, VA treatment records from April 2016 indicate he was still being prescribed a topical steroid cream. The United States Court of Appeals for the Federal Circuit has held that although not all topical corticosteroid treatments meet the definition of "systemic therapy," application of a topical corticosteroid could meet the definition if it were administered on a large enough scale such that it affected the body as a whole. Johnson v. Shulkin, 2017 U.S. App. LEXIS 12601. Therefore, the Veteran should be afforded a VA examination to assess whether his current use of a topical corticosteroid constitutes systemic use. The Veteran also contends he is entitled to an earlier effective date prior to March 1, 2007 for his TDIU. This claim will be decided once the increased rating claims are returned to the Board. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the Northern Arizona Health Care System and all associated clinics from August 2016 to the present. 2. Ask the Veteran to submit information (such as from a pharmacy) showing when/how often he has used topical or oral steroid treatments for his tinea cruria and tinea pedis. 3. After the above development is completed, schedule the Veteran for an examination for his respiratory condition. The examiner is requested to answer whether it is at least as likely as not (a 50 percent probability or greater) that any current diagnosed respiratory disorder was incurred in, as a result of, or otherwise etiologically related to the Veteran's active duty, either a direct basis or as secondary to Agent Orange exposure. See in-service reports of trouble breathing listed above. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. The Veteran should be scheduled for a VA examination to address the current severity of his thoracolumbar spine disability and his tinea cruris and tinea pedis. The examiner is asked to specifically address the following: With regard to the Veteran's thoracolumbar spine disability, the examiner should make particular note of the Veteran's complaints of tingling and burning in his lower extremities and the medical evidence indicating he had a back disability with neurological complications. The examiner should also specifically address whether the Veteran has any associated neurological abnormality, including bilateral radiculopathy in his lower extremities. All necessary diagnostic testing should be conducted. With regard to his tinea pedis and tinea cruris, the examiner should make particular note of how extensively the Veteran applies his prescribed topical corticosteroid for his tinea cruris and tinea pedis and whether his use fits the definition of "systemic use" such that it impacts his body as a whole, as opposed to topical therapy meaning treatment pertaining to a particular surface area, which is applied to a certain area of the skin and affects only the area to which it is applied. 5. After completing the above and any other development deemed necessary, readjudicate the remanded issues. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs