Citation Nr: 1802500 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-20 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a rash on the neck. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for urethral lesions. 5. Entitlement to service connection for a bilateral breast disability. REPRESENTATION Veteran is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2002 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2013 and July 2016 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. In August 2013, the Veteran submitted an application for a total disability rating based on individual unemployability (TDIU), which has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to service connection for a bilateral breast disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The probative evidence of record does not contain a current diagnosis of a disability manifested by a rash on the neck. 2. The most probative evidence is against a finding that a current left knee disability is related to service. 3. The most probative evidence is against a finding that a current right knee disability is related to service. 4. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran's urethral lesions are symptoms of human papillomavirus (HPV), which he contracted during service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a rash on the neck have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for establishing entitlement to service connection for a left knee disability not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for establishing entitlement to service connection for a right knee disability not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for establishing entitlement to service connection for urethral lesions due to HPV been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 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 § 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 the 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. Rash on the Neck The Veteran seeks service connection for a rash on the neck, which he asserts had its onset during service. Service treatment records show that the Veteran received Kenalog cream for a rash on his neck in July 2008. Upon review of the record, the Board finds that the probative evidence of record does not show a current diagnosis of a disability manifested by a rash on the neck. The Veteran underwent a VA examination in December 2008, during which he reported receiving cream for a rash on two occasions during service. A physical examination of the skin was normal, and the neck was clear of any exanthema. VA treatment records indicate that in September 2009, the Veteran reported getting a rash on his neck, which was usually associated with sun exposure; however, a physical examination of the skin was normal, and no diagnosis was rendered. Thereafter, the record shows no treatment for or diagnosis of a rash on the neck, and the Veteran denied any skin problems or rashes in July 2010, August 2010, May 2011, and March 2012. The Veteran underwent another VA examination in November 2016, during which he reported having a rash on his neck in 2006, which eventually healed on its own without treatment. He stated that it came back a couple of times a year, particularly in the summer. A physical examination of the neck revealed no evidence of a rash. Although the Veteran believes that he has a current skin disability which is related to service, as a lay person, he 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 or etiology). In this regard, the diagnosis and etiology of skin disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the diagnosis and etiology of a current skin disability is not competent medical evidence. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that "[i]n the absence of proof of a present disability, there can be no valid claim"). In this case, there is no competent medical evidence of record showing that the Veteran has a current diagnosis of a skin disability. As the there is no medical evidence of a current disability, there is no basis upon which service connection can be awarded. Thus, the claim for service connection for a rash on the neck is denied. Left and Right Knee Disabilities The Veteran seeks service connection for left and right knee disabilities, which he asserts began during service. Service treatment records show two complaints of left knee pain in June 2005 and two complaints of right knee pain in March 2006. The Veteran reported pain with running and denied any history of trauma. X-rays of both knees were normal, and the diagnoses were tendinitis of the left and right posterior knee tendons. Thereafter, the record shows no additional complaints of or treatment for knee pain during service. Upon review of the record, the Board finds that the probative evidence of record is against a finding that a current left and/or right knee disability was incurred in or caused by service. The Veteran underwent a VA examination in December 2008, during which he reported bilateral knee pain about three times a week. A physical examination revealed no swelling, heat, redness, or tenderness to palpation. The examiner indicated that the Veteran's knee examination was essentially normal, and no diagnosis was rendered. Subsequent VA treatment records show that the Veteran reported occasional knee pain in September 2009. Thereafter, in May 2013, August 2013, and September 2013, he reported a painful bump on his left knee since February 2012 or February 2013. X-rays were normal, and the impression was left knee tendonitis. The treatment provider referred the Veteran to physical therapy and advised him that his knee pain would improve with conservative treatment. The Veteran underwent another VA examination in November 2016, during which he reported having bilateral knee pain and locking while running in 2004. He reported current symptoms of locking and buckling and pain that comes and goes. X-rays showed no significant degenerative changes or abnormalities in either knee. The examiner reviewed the evidence of record and opined that a current left and/or right knee disability was less likely than not incurred in or caused by service. The examiner explained that the Veteran sustained knee strains during service and that knee strains are acute conditions and not chronic disabilities. The examiner further noted that x-rays of both knees were normal, and there were no objective findings to indicate that Veteran has a chronic knee condition. There is no competent medical opinion linking a current knee condition to service. Although the Veteran believes that current left and right knee disabilities are related service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of knee disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current left and/or right knee disability is not competent medical evidence. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for left and right knee disabilities is denied. See Gilbert, 1 Vet. App. at 56. Urethral Lesions The Veteran seeks service connection for urethral lesions, which he asserts had their onset during service. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran's urethral lesions are symptoms of HPV, which he contracted during service. Service treatment records indicate that a genitourinary examination conducted upon the Veteran's enlistment was normal. In February 2005, the Veteran sought treatment for bloody spotting from the urethra. A urethroscopy revealed multiple papillary lesions, and the diagnosis was condyloma acuminata. The Board notes that condyloma acuminata are genital warts caused by HPV. See https://medlineplus.gov / genitalwarts.html. Moreover, while there are treatments for health problems caused by HPV, such as genital warts, there is no specific treatment or cure for HPV itself. See https://www.cdc.gov/std/hpv/STDFact-HPV-and-men.htm. Thereafter, VA treatment records note a history of HPV and show continued intermittent treatment for HPV lesions. Although a November 2016 VA examiner opined that the Veteran's ureteral lesions were not caused by military service because they are a sexually transmitted disease, the examiner did not address the issue of whether the Veteran contracted the sexually transmitted disease during service. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for urethral lesions due to HPV is warranted. ORDER Service connection for a rash on the neck is denied. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for urethral lesions due to HPV is granted. REMAND The Veteran underwent a VA examination pursuant to his service connection claim for a bilateral breast disability in December 2008, during which he reported intermittent problems with abscesses in the bilateral areola areas. It was noted that the Veteran sought treatment for nipple discharge during service, which was diagnosed as mastitis, and he was prescribed antibiotics for a small abscess to the right superior areola area. The examiner indicated that a physical examination of the skin was normal, and no diagnosis was rendered. In the December 2013 remand, the Board noted that after the December 2008 VA examination, the Veteran sought treatment for breast discharge and tenderness to the areola areas and was diagnosed with galactorrhea in September 2009. The Board remanded the claim in order to provide the Veteran with another VA examination to determine the nature and etiology of any current breast disability, including galactorrhea. The Veteran underwent another VA examination in November 2016, during which he reported a history of abscesses in the breast area, but denied any current problems. The examiner opined that a current breast condition was not related to service because the right breast abscess noted in service had since resolved. In a May 2017 addendum, the examiner indicated that she could not provide an opinion with respect to the diagnosis of galactorrhea because she was only asked to conduct a skin examination, and a breast examination was never ordered. Based on the forgoing, the Board finds that a remand is necessary in order to provide the Veteran with a VA breast examination and to obtain an opinion with respect to the Veteran's diagnosis of galactorrhea, in accordance with the terms of the Board's December 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even if the disability subsequently resolves). Updated treatment records should also be obtained. See 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for a breast disability, including galactorrhea. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a VA breast examination. The electronic claims file must be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it at least as likely as not (50 percent or higher probability) that any current breast disability, including galactorrhea diagnosed in September 2009, arose in service or is related to service. A complete rationale for all opinions must be provided. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's service connection claim for a bilateral breast disability should be readjudicated. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and provided an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs