Citation Nr: 1800771 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 09-11 049A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a ruptured right eardrum. 2. Entitlement to service connection for a skin condition, to include as due to a fungal infection in service and/or herbicide agent exposure. 3. Entitlement to service connection for a bilateral shoulder condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran had active service from February 1961 to October 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issues were remanded by the Board in May 2017 for further development. In its May 2017 remand, the Board directed the RO to schedule the Veteran for VA examinations to ascertain the etiology of a right eardrum, skin and bilateral shoulder disabilities. Such actions were accomplished. There was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran had a Decision Review Officer hearing in December 2009. A copy of the transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The competent medical evidence does not show that the Veteran has a ruptured right eardrum that was incurred in or aggravated by service. 2. The competent medical evidence does not show that the Veteran has a current skin condition as a result of a fungal infection in service and/or exposure to herbicides. 3. The preponderance of the evidence of record is against a finding that the Veteran's bilateral shoulder disability was incurred in or presumed to have been or, or manifested to a compensable degree within one year of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right eardrum condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for a skin condition, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103A, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for a bilateral shoulder disability are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify was fulfilled by April 2007 and June 2009 letters. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment records, VA medical treatment records and indicated private treatment records have been obtained. Hurd v. West, 13 Vet. App. 449, 452 (2000). The Veteran was afforded VA ear examinations in August 2009 and May 2013. The examinations did not consider the medical history of right ear complaints in service. Therefore, the Board deemed them inadequate in the May 2017 remand. During an April 2016 VA examination for the Veteran's skin condition, the VA examiner opined that there was no current diagnosis of a skin condition and noted that the Veteran never had a skin condition. As the examiner failed to consider the Veteran's history of a fungal rash, diagnosis of pityriasis rosea in service and the post-service diagnoses related to the skin, the Board found the examination inadequate in the May 2017 remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Veteran was afforded a bilateral shoulder and skin diseases examinations in June 2017. Additionally, the veteran underwent an ear conditions examination in July 2017. The examinations took into consideration the Veteran's pertinent medical history, his lay assertions and complaints, and a review of the record. The Veteran's representative has argued the examinations "are wholly inadequate for VA purposes" because they were conducted by a family medicine practitioner, rather than certified specialist in the orthopedics, dermatology and audiology fields. The Board notes that the family medicine practitioner who performed the examinations is a qualified medical professional, through his education and training has sufficient expertise related to the ear, skin, and shoulders to provide an adequate examination in this case. Cox v. Nicholson, 20 Vet. App. 563 (2007). The Board notes that a hearing loss and tinnitus examination was conducted by C. C., an audiologist in July 2017, who concluded that "the right ear yielded a Type A tympanogram today which indicates there is not a perforation in the right eardrum." The Board, therefore, finds that the July 2017 skin, ear, and shoulder examinations are adequate for adjudication purposes. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2017). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). A. Right Ear Condition The Veteran contends that he had a ruptured right eardrum disability that is a result of service. The Veteran's service treatment records (STRs) are silent for complaint, treatment or diagnosis of a right eardrum perforation during service. The record, however, contains a December 1965 complaint of otitis media. Additionally, notes dated in September 1977 indicate a complaint of and treatment for a cerumen blocked right ear. Notes dated in August 1981 indicate ear soreness. The Veteran was then diagnosed with an "AS [left ear] perforation." The Veteran was given a prescription and told to keep the ear dry. An August 1983 Report of Medical Report/Separation Examination reveals that the Veteran indicated ear/nose/throat trouble. An ENT consult dated in late September 1983 reported that a physical examination revealed that the right tympanic membrane was normal, with no evidence of perforation. Post-service VA treatment records are silent for a right eardrum perforation. Notes dated in February 2003 indicate that "both tympanic membranes are obscured by cerumen." Notes from that same visit indicate that from previous operations that the Veteran had a left tympanoplasty to repair a ruptured eardrum. The record contains relevant information from a hearing loss and tinnitus examination conducted in July 2017. The audiologist concluded that the Veteran's "right ear yielded a Type A tympanogram today which indicates there is not a perforation in the right eardrum." The Veteran was afforded a VA examination in July 2017, to address the etiology of his claimed right eardrum perforation. It was noted that the Veteran had undergone a right tympanoplasty in 1983 without residuals or symptoms. The examiner concluded that the Veteran's right eardrum condition was less likely than not (less than 50 percent probability) incurred in or was caused by the claimed in-service injury, event or illness. He rationalized that the Veteran's STRs showed no evidence of a right perforated tympanic membrane. Additionally, at the separation examination, there was no evidence of a rupture of the right tympanic membrane. The Board finds the July 2017 audiologist's opinion most probative against a finding that the Veteran's has a right eardrum condition that was incurred in service. The Board finds that service connection for a right eardrum condition must be denied. The audiologist conducted specific tests to determine whether a perforation was present and found that it was not. Furthermore, the July 2017 ear conditions examiner noted that there were no residuals from the Veteran's right tympanoplasty. The Board notes that the Veteran is competent to report his observable pain and buzzing in the right ear. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. at 435(2011). However, the Veteran, in this case, is not competent to self-diagnose current residuals of a right ear perforation. Jandreau v. Nicholson, 492 F .3d at 1377(Fed Cir. 2007). As previously noted, the audiologist who conducted the July 2017 hearing loss and tinnitus examination concluded that the Veteran's "right ear yielded a Type A tympanogram today which indicates there is not a perforation in the right eardrum." To evaluate such a condition, specific tests were conducted. The Veteran, in this case, does not possess the necessary expertise to perform or interpret such tests. As a result, the probative value of his lay opinion is low. With regard to a right eardrum perforation, the existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see McClain v. Nicholson, 21 Vet. App. 319. Accordingly, the preponderance of the evidence of record does not show that the Veteran has had a right eardrum perforation during the appeal period. Therefore, service connection for a right eardrum perforation is denied. Gilbert v. Derwinski, 1 Vet. App. 49. B. Skin Condition The Veteran contends that his skin condition is a result of service and/or exposure to herbicide agents. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2017). The Veteran's personnel records show that he served in the Republic of Vietnam and therefore he is presumed to have been exposed to herbicide agents. The Veteran's STRs dated in November 1977 indicate a complaint of a rash and fungal growth on the right and left side area of his back. The Veteran was seen and treated for complaints of the scaly lesion on the right lateral chest wall. He was diagnosed with pityriasis rosea. A follow-up treatment report, dated in January 1978, notes an assessment of resolving pityriasis rosea. The Veteran's separation examination, performed in August 1983, noted that his skin was normal. Post-service treatment records (ER notes) dated in May 2002 indicate that the Veteran had a yellowish discoloration of the skin. The Veteran skin also showed multiple vascular spiders and was jaundiced. Private treatment records dated from October 2004 through May 2005 indicate the Veteran's complaint of a rash. During a mid-November 2004 visit, the physician noted his impression: contact dermatitis. Approximately a week later, the Veteran was again seen for complaints of a rash. The physician noted his impression: tinea corporis, tinea pedis, and tinea cruris. From November to May 2005, the Veteran was prescribed various medications for his skin rash. Private treatment notes dated in June 2007 notes normal skin. The Veteran underwent a VA skin examination in June 2017. The examiner concluded that the Veteran's skin condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. He rationalized that the Veteran was evaluated in November 1977 for skin lesions over his chest and back with no itch and had a diagnosis of pityriasis rosea. In January 1978, the Veteran was evaluated for resolving scaly skin lesion over the right lateral chest with a diagnosis of resolving pityriasis rosea. "There were no other skin conditions noted during the remaining active duty, to include the separation examination in 1983. There was no evidence of a chronic skin problem/symptoms and normal skin exam was reported at separation." Additionally, the examiner noted that a review of the medical records was silent for skin problems until 2004/2005 when the Veteran was diagnosed and treated for dermatitis/eczema, tinea versicolor, tinea pedis, tinea corporis and tinea cruris and with jaundice from the liver. The examiner concluded that based on the claims file, there is no active skin condition and no chronic treatment for it since 2005, even though the Veteran refers skin symptoms off and on. Regarding whether the Veteran's pityriasis rosea condition in service could have caused the Veteran's dermatitis/eczema, tinea versicolor, tinea pedis, tinea corporis and/or tinea cruris, the examiner noted that pityriasis rosea is a condition suspected to be caused by a viral infection and has no correlation with contact dermatitis/eczema, tinea versicolor, tinea pedis, tinea corporis and tinea cruris. Regarding the Veteran's claim of exposure to herbicide agents causing his skin condition, the Board notes that the skin conditions that are present in the Veteran's history are not listed as diseases recognized as being presumptively related to Agent Orange exposure. 38 C.F.R. § 3.309 (e) (2017). Nonetheless, the Veteran is not barred from receiving compensation if the medical evidence establishes a nexus between a skin diagnosis and exposure to chemical herbicides. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the case at hand, the examiner did not find a link between the Veteran's contact dermatitis/eczema, tinea versicolor, tinea pedis, tinea corporis and tinea cruris and exposure to Agent Orange. The examiner noted that the above-mentioned skin diseases have not been associated with exposure to Agent Orange. He cited as reference Up To Date review of Pityriasis rosea, Overview of Dermatitis and Dermatophyte (tinea) infections. The Board finds this opinion most probative against a finding that the Veteran's has a skin condition was incurred in service and/or from exposure to herbicide agents. As a result, therefore, the Board finds that service connection for a skin condition must be denied. Although the Veteran's STRs show complaint, treatment, and diagnosis of a skin condition in service, the evidence of record does not show any active skin conditions and/or treatment for them, since 2005. The exit examination is absent of skin problems. Additionally, it was almost 20 years after service that the Veteran was diagnosed with contact dermatitis/eczema, tinea versicolor, tinea pedis, tinea corporis and tinea cruris, all of which the June 2017 concluded was not related to service, or the pityriasis rosea or the Veteran's exposure to Agent Orange. The Board notes that the Veteran is competent to report his observable skin symptoms. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. However, the Veteran, in this case, is not competent to offer a diagnosis and etiology of a skin condition. Such a determination falls outside the realm of common knowledge of a layperson. Jandreau, 492 F .3d at 1377 n.4. As a result, the probative value of his lay opinion is low. The June 2017 examiner noted no current skin condition. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see McClain, 21 Vet. App. 319. Accordingly, the preponderance of the evidence of record does not show that the Veteran has had a skin condition related to service, any incident therein and/or to Agent Orange exposure. Therefore, service connection for a skin condition is denied. Gilbert, 1 Vet. App. 49. C. Bilateral Shoulder disability The Veteran claims that he has a bilateral shoulder condition as the result of being a "weapons man" in service. The Veteran has a current diagnosis of a bilateral shoulder disability. Hence, the first element of a service connection claim is met. The Veteran's STRs are silent for any complaints of or treatment for any shoulder condition. The separation examination is also silent for complaints of a shoulder condition. Post-service treatment notes dated in September 2002 indicate a complaint of shoulder pain. Further, notes dated in February 2003 indicate that the Veteran complained of chronic pain in his shoulders and knees. He informed the physician that he had been having said pain for the "last year or so." Private treatment notes dated in September 2009 indicate that the Veteran presented with left shoulder pain. He reported that while in the military, he worked on planes and endured a lot of overhead activity, putting bombs on aircraft. In December 2009, the physician diagnosed the Veteran with a left shoulder rotator cuff rupture, full thickness tear supraspinatus. The Veteran was afforded a VA examination in June 2017. The examiner noted that imaging studies conducted at the examination showed degenerative arthritis of the shoulder. He then concluded that the Veteran's bilateral shoulder condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. He rationalized that a review of the Veteran's service treatment records did not reveal evidence of treatment for or complaints of any shoulder problems. Additionally, "the separation physical was reported as a normal." It was not until 2003, that private medical records noted, "pain in the shoulders," for which the Veteran treated with Vioxx. No diagnosis was provided for the pain. The June 2017 VA examiner further concluded that, due to the time gap between discharge from service and the evidence when the current diagnosis was established, combined with the lack of symptoms during duty, the condition was less likely than not due to service. The Board finds this opinion most probative against a finding that the Veteran's bilateral shoulder disability was incurred in service or within one year of leaving service. The examiner provided a well-reasoned rationale for his conclusions. Significantly, he noted that the Veteran's shoulder condition was not diagnosed until 2017. Additionally, there were no complaints until 2003 of a shoulder condition, well over 20 years after the Veteran's period of active military service. The Board finds that service connection for a bilateral shoulder must be denied. The Veteran's STRs do not show complaint, treatment, and diagnosis of a bilateral shoulder condition. Additionally, the probative evidence of record is absent of post-service complaints of a shoulder disability until February 2003, and 20 years after the Veteran's active service concluded. The Veteran was released from active duty in October 1983, and the record establishes that the Veteran's shoulders were normal at separation. The post-service treatment records note that the Veteran was first seen in February 2003 for complaints of shoulder pain. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The competent evidence of record does not show that the Veteran's bilateral shoulder disability became manifest to a 10 percent degree or more within one year of separation from service, in October 1983. Therefore, presumptive service connection is not warranted. 38 C.F.R. § 3.309(a). As to the theory of the continuity of symptomology, the examiner noted that there was no showing of a shoulder condition until several years after active service. He noted that the Veteran's post-service medical records failed to support a chronic shoulder condition until several years following his active military service. The Veteran asserts that his bilateral shoulder disability was incurred in service. Additionally, he asserts that his bilateral shoulder disability continued and worsened after service. Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Jandreau, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. However, the specific issue, in this case, determining the etiology of his bilateral shoulder disability, falls outside the realm of common knowledge of a lay person. Jandreau, 492 F. 3d at 1377 n.4. Such a determination requires medical inquiry into the biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran who in this case, has not been shown by the evidence of record to have the training, experience, or skills to make such a determination. To the extent that he asserts continuity of symptomology, the record contradicts this theory. The probative evidence of record does not show any complaints, treatment or diagnosis of a bilateral shoulder disability until February 2003, approximately 20 years after the end of his active duty. Thus, the Veteran's opinion is not probative. Additionally, his assertions were investigated by a competent medical professional, who determined that his disability was not due to service. The findings of the June 2017 VA examiner are more probative than the lay evidence. Therefore, the preponderance of the evidence is against a finding that the Veteran's bilateral shoulder disability was incurred in or a result of service or manifested within one year of service. 38 C.F.R. § 3.309(a), 3.307(a)(3), 3.309(a). The benefit of the doubt rule is not applicable. 38 U.S.C.A § 5107 (b); Gilbert, 1 Vet. App. at 55-57 (1990). Service connection for a bilateral shoulder disability is denied. ORDER Service connection for a ruptured right eardrum is denied. Service connection for a skin condition, to include as due to a fungal infection in service and/or herbicide agent exposure is denied. Service connection for a bilateral shoulder condition is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs