Citation Nr: 1802217	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO. 14-07 806	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1. Entitlement to service connection for a back disability, to include lumbar strain.

2. Entitlement to service connection for a bilateral hearing loss disability.

3. Entitlement to service connection for psoriasis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1984 to August 1988 and from August 1988 to April 1990.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 


FINDINGS OF FACT

1. The Veteran does not have a back disability, to include a lumbar strain, that was incurred in, or is otherwise related to, active duty service.

2. The Veteran did not have a hearing loss disability for VA purposes during service or within one year of separation from service. 

3. The Veteran's current bilateral hearing loss disability did not have its onset in service and sensorineural hearing loss was not manifested within one year following service discharge.

4. The Veteran clearly and unmistakably had psoriasis which preexisted service and clearly and unmistakably was not aggravated during service; therefore the Veteran is not presumed sound as to psoriasis. 


CONCLUSIONS OF LAW

1. The criteria for service connection for a back disability, to include lumbar strain, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).

2. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).

3. The criteria for service connection for psoriasis have not been met. 38 U.S.C. §§ 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor the 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 duty to assist argument).

Service Connection, Generally

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In addition to direct service connection, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Hearing loss (organic disease of the nervous system) is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for tinnitus and hearing loss based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). 

In deciding an appeal, the Board must 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 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). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. at 469. 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, 21 Vet. App. at 311. 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, 492 F.3d at 1377. 

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. § 5107(b); 38 C.F.R. § 3.102.

Back Disability

The Veteran contends that service connection for a back disability is warranted because it was incurred in service or otherwise related to service. In July 2016 and December 2017 statements, through his representative, the Veteran indicated that service treatment records reflect treatment for lumbar tenderness due to a football injury; treatment for mechanical low back pain in July 1986 and August 1986; and treatment for L-4 spinal tenderness in October 1987. The Veteran also asserted that his lower back injury began between 1986 and 1987 in the April 2012 Veteran's Application for Compensation and/or Pension.

The Board has reviewed the record; including the above mentioned service treatment records for any indication that any current back disability is related to the in-service occurrences of back pain and that the preponderance of the evidence is against such relationship. In a July 1986 service treatment record, the Veteran complained of pain along the left lower back; that it was hard to bend and that it hurt to straighten and raise his legs. The physician noted that there was no history of injury or trauma and that the Veteran's spine and extremities were within normal limits. The Veteran's right lower back was within normal limits but the left lower back was tender with muscle tightness. The physician's assessment was mechanical low back. The physician prescribed Robaxin and Motrin and instructed the Veteran to rest for two days and use wet heat on his back. 

In August 1986, the Veteran returned for a follow-up for his complaint of back pain. The Veteran indicated that his back still hurt although he had noticed improvement with Robaxin and Motrin. The Veteran's back was examined and the physician noted that range of motion was better. The physician assessed mechanical back pain and instructed the Veteran to continue Robaxin and Motrin. The Veteran was also seen in-service for back pain in October 1987. The service treatment record noted progressive severe right low back pain (L-4) radiating down the ride side halfway down the thigh with no prior history of back pain. The physician noted no unusual lifting and no known trauma. A physical examination indicated mild L-4 spinal tenderness in the back with no obvious paravertebral muscle spasm. The physician concluded generally moderate distress and noted that the Veteran was unable to find a comfortable position. There are no other service treatment records reflecting complaints of back pain in service. 

The Veteran's April 1990 separation examination revealed a normal clinical evaluation for the "lower extremities" and "spine, other musculoskeletal." Further in the accompanying Report of Medical History, the Veteran indicated that his health was "good" and only mentioned "PUVA treatments for psoriasis." The Veteran checked "no" when asked if he ever had or had then "recurrent back pain" and "no" when asked if he "ever had any illness or injury other than those already noted." The Veteran signed this document, wherein he attested that the information he provided in this form was "true and complete to the best of my knowledge." The Board accords high probative value and credibility to this document, as the Veteran completed it contemporaneously with service.

The Veteran was provided a VA examination in February 2013. The VA examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that a review of the Veteran's claim's file shows treatment for back pain on three separation occasions (as described above). She added that the separation examination in 1990 notes that the Veteran's spine was "normal" and that there were no back issues identified and for this reason she could not conclude that the Veteran's in-service back treatments indicate the start of a chronic problem. The VA examination report and opinion provides competent and probative evidence that weighs against the Veteran's claim because the VA examiner reviewed the claims file, interviewed the Veteran, performed an examination, and provided a medical opinion supported by well-reasoned rationale.

The Veteran has asserted that his back disability is related to service; however the Veteran has not offered probative and competent evidence establishing a nexus between the Veteran's back disability and service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). A diagnosis of a back disability requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran lack probative value.

Absent competent, credible, and probative evidence of a nexus between the Veteran's service and his back disability, the Board finds that the Veteran's back disability was not incurred in-service and is not otherwise related to active service as the Veteran has not offered competent medical evidence in support of his claim. See 38 U.S.C. § 5107(a) ("A claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "whether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). Accordingly, service connection for a back disability is not warranted.

The preponderance of the evidence is against the claim of service connection for a back disability, to include lumbar strain, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App.at 55.


Bilateral Hearing Loss Disability

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss disability, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran contends that service connection for a bilateral hearing loss disability is warranted because it was caused by his in-service exposure to acoustic trauma. Specifically, in the April 2012 Veteran's Application for Compensation and/or Pension, the Veteran asserted that he was a heavy equipment operator on the flight line and a weapons (small arms) instructor which caused his hearing loss. The Veteran also made similar statements in a March 2014 Substantive Appeal (VA-Form 9).

The Veteran has a current bilateral hearing loss disability for VA purposes. In January 2013, the Veteran underwent a VA audiological examination which showed that the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
25
50
50
LEFT
10
15
35
50
50

Following this examination, the VA examiner diagnosed the Veteran with sensorineural hearing loss (in the frequency range of 500-4000 Hz) bilaterally. The Veteran had a speech discrimination score of 88 percent in the right ear and 88 percent in the left ear following testing with the Maryland Consonant-Vowel Nucleus-Consonant (CNC) word list.

The Veteran's audiological examination in January 2013 showed at least one of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz at 40 decibels or greater and a speech recognition score using the Maryland CNC test of less than 94 percent for both ears. The results also showed least three of those frequencies at 26 decibels or greater in the left ear. Under 38 C.F.R. § 3.385, the Veteran only needed to meet one of the criteria for his impaired hearing in each ear to be considered a disability for VA purposes. The Veteran has shown the criteria for bilateral hearing loss in the January 2011 VA audiological examination. 

The Veteran has also submitted an audiogram from a private medical facility from May 2012, which showed that the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
25
50
60
LEFT
15
15
25
55
55

The May 2012 audiological examination from the private medical facility also showed that at least one of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz at 40 decibels or greater in each ear. Therefore, the evidence shows that the Veteran has a current bilateral hearing loss disability. Accordingly, the first element of service connection is met.

The Board has reviewed the evidence of record, including service treatment records for any indication that the Veteran's claimed exposure to acoustic trauma in-service is the cause of his current bilateral hearing loss disability and does not find competent evidence in support of his assertions. Service treatment records are silent for any complaints of hearing problems. The Veteran indicated in the April 2012 Veteran's Application for Compensation And/or Pension that he was not receiving any treatment for his hearing loss. 

The January 2013 VA examiner opined that the Veteran's hearing loss is not at least as likely not (50 percent probability or greater) caused by or a result of an event in military service. The examiner provided a rationale that a review of service treatment records indicated no significant shift in hearing levels between enlistment and separation, bilaterally. The examiner also noted that the November 1983 enlistment examination showed hearing within normal limits bilaterally and the April 1990 separation examination also showed hearing within normal limits bilaterally with no significant threshold shift.

An addendum VA medical opinion was provided in April 2016 to address the possibility of delayed onset hearing loss. The VA examiner, a staff audiologist, opined that the Veteran's current hearing loss is less likely than not related to military noise exposure and that there is no delayed onset of hearing impairment from the military. The examiner provided the rationale that the Veteran's hearing was normal at separation from military and that there is no evidence in the record that the Veteran sustained noise injuries based on audiograms. She added that once military noise exposure is removed, hearing would not be expected to get worse. She found that there is no basis to conclude that the hearing loss was causally related to military service. The examiner cited to the Institute of Medicine (2006) report that based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure. Further, she elaborated that the Institute of Medicine stated there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. The examiner stated therefore, there is no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure.

There is also no evidence of continuous symptomatology from the time of service to the present. As noted above, the Veteran's first diagnosis of sensorineural hearing loss was in 2012, more than 20 years following service discharge.  

The Veteran has attempted to establish a nexus through his own lay assertions that his bilateral hearing loss is related to his in-service exposure to noise hazards; however, the Veteran is not competent to offer opinions as to the etiology of his current hearing disorder. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Hearing loss requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. The Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and service. The Board has considered objective medical evidence which showed that he did not have hearing loss until years after service. 

The preponderance of the evidence is against the claim of service connection for a bilateral hearing loss disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App.at 55.

Psoriasis

A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). The presumption is rebutted where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111, 1137.

The VA Office of General Counsel and the appellate courts have issued clarifying precedent decisions regarding application of the presumption of sound condition upon entry into service. Under this guidance, to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. A veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 

The Veteran has a current diagnosis of psoriasis which is confirmed by the February 2013 VA examiner in her report. The Veteran's November 1983 service entrance examination revealed normal bodily systems, including "skin, lymphatics." The Veteran's psoriasis is therefore not considered to be noted on entry.

While the Veteran's psoriasis was not noted upon entry to service, the Board finds that the evidence of record establishes that psoriasis clearly and unmistakably existed prior to service. In the Veteran's Application for Compensation and/or Pension, he reported that his psoriasis began in January 1984 however this is not the case. For example, a January 1984 service treatment record indicates that the Veteran reported to EPTS (Existed Prior to Service) Section for an evaluation of psoriasis which was disqualifying for initial enlistment. The record indicates that the Veteran was seen at the Central Dispensary and reported that he had psoriasis for approximately four years, treated it with a white lotion, and that it was getting worse. The examination showed erythematous areas with dry desquamating excoriated lesions on the head, right arms, and legs. The physician's impression was psoriasis. The Veteran was subsequently referred to the dermatology department where another physician found essentially the same findings upon examination with the addition of nail pitting with an impression of psoriasis vulgaris. The Veteran was prescribed medication and shampoo and referred to EPTS for evaluation. It was noted that the Veteran's history of EPTS psoriasis was not revealed at MEPS (Military Enlistment Processing Station). EPTS's deposition was that the Veteran's psoriasis existed prior to entry into service and had not been aggravated by service beyond normal progression of the disease. It was recommended that the Veteran be discharged from service under the provisions of ATC (Air Training Corps) Regulation 39-6 for an EPTS condition.

A January 1984 Medical Board Report reflects after consideration of clinical records, laboratory findings, and physical examination, the Medical Board established a diagnosis of psoriasis. It was noted that psoriasis was a physical defect that precludes full utilization into military service and that the Veteran did not meet minimum enlistment standards but met retention standards. The approximate date of origin was noted to be "undetermined, but EPTS." The Medical Board determined that the disability was not incurred while the Veteran was entitled to basic pay, existed prior to service, and was not permanently aggravated by service. The Medical Board recommended discharge from service by reason of physical disability [psoriasis] which existed prior to service (ETPS) and had not been aggravated permanently thereby. The January 1984 Central Dispensary service treatment record reflects that the Veteran had psoriasis and that the Medical Board recommended EPTS discharge. It was also noted that the Veteran wanted to remain in the Air Force and that under ATC Regulation 39-6 the squadron commander may request a waiver of discharge action. The Veteran was referred to the squadron commander for further disposition.

In an October 1989 service treatment record, the Veteran reported that he had psoriasis since age 14. The Board notes that the Veteran is competent to report observable symptomatology such as a skin disorder. Layno, 6 Vet. App. at 469. The Veteran's April 1990 separation examination reflected an abnormal clinical evaluation of "skin, lymphatics." The Veteran was noted to have "single psoriatic plague, right axillae." In the accompanying Report of Medical History, the Veteran described his health as "good" and indicated "PUVA treatments for psoriasis." He also checked "yes" when asked if he ever had a "skin disease." The medical professional noted that the [Medical] Board recommended discharge but the Veteran was retained on active duty and that the Veteran was treated for plaque psoriasis with PUVA (Psoralen and Ultraviolet A) and was restricted from any outside activities and must wear sunglasses in direct and indirect sunlight. 

Further, the Veteran was afforded a VA examination for his psoriasis in February 2012. The VA examiner found that the Veteran's psoriasis clearly and unmistakably existed prior to service. The examiner cited to service treatment records which reflected that the Veteran had psoriatic lesions present in scalp, arms, and legs which also noted nail pitting and that the Veteran's psoriasis had not been aggravated by service beyond the natural progression of the disease.

Accordingly, the Veteran's service treatment records clearly and unmistakably establish the Veteran's psoriasis manifested prior to entering service. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (clear and unmistakable evidence is an onerous evidentiary standard, requiring that the preexistence of a condition be undebatable).
 
Next, the Board finds that psoriasis clearly and unmistakably was not aggravated during service. The Veteran, through his representative, in July 2016 and December 2017 statements indicated that it was well noted that the Veteran was treated for psoriasis in service treatment records and listed specific dates that treatment occurred. A review of the service treatment records show numerous records reflecting complaints and treatment for a skin disorder; however these records do not provide any direct indication that the Veteran's psoriasis was aggravated beyond its natural progression. The Veteran has not offered competent medical evidence in support of his assertion that his service aggravated his preexisting psoriasis beyond its natural progression. 

The February 2013 VA examiner opined that the Veteran's psoriasis clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. She indicated that the service treatment records indicate the Veteran had psoriatic lesions present in the scalp, arms, and legs; nail pitting; and that the Veteran's psoriasis had not been aggravated by service beyond the natural progression of the disease. The VA examination report and opinions provide competent and probative evidence that weighs against the Veteran's claim because the VA examiner reviewed the claims file, interviewed the Veteran, performed an appropriate examination, and provided medical opinions supported by well-reasoned rationale.

The record does not support a finding of another injury or event that caused an increase while in service to the preexisting psoriasis. The Veteran has not provided evidence to establish that psoriasis was aggravated during service. Thus, the only competent evidence of record is against the Veteran's claim. Accordingly, the evidence shows Veteran's psoriasis existed prior to service and was not aggravated by service.

The preponderance of the evidence is against the claim of service connection for psoriasis, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App.at 55.


ORDER


Service connection for a back disability, to include lumbar strain, is denied.

Service connection for a bilateral hearing loss disability is denied.

Service connection for psoriasis is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs