Citation Nr: 1803570 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-31 042A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for conjunctivitis. 2. Entitlement to service connection for residuals of a hernia. 3. Entitlement to service connection for a skin condition of the hands and face. 4. Entitlement to service connection for a skin condition of the legs and feet. 5. Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine. 6. Entitlement to an evaluation in excess of 10 percent for impairment of the cutaneous and sciatic nerves of the right lower extremity. 7. Entitlement to an evaluation in excess of 10 percent for impairment of the cutaneous and sciatic nerves of the left lower extremity. 8. Entitlement to an evaluation in excess of 10 percent for right shoulder degenerative arthritis. 9. Entitlement to an evaluation in excess of 10 percent for right knee patellofemoral pain syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had honorable active service in the United States Air Force from November 1992 to February 2011. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied entitlement to the benefits sought. The Veteran appealed the underlying decision in a Notice of Disagreement received in August 2011. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The issues of entitlement to service connection for a skin condition of the hands and face, a skin condition of the legs and feet, an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine, an evaluation in excess of 10 percent for impairment of the cutaneous and sciatic nerves of the right lower extremity, an evaluation in excess of 10 percent for impairment of the cutaneous and sciatic nerves of the left lower extremity, an evaluation in excess of 10 percent for right shoulder degenerative arthritis, and an evaluation in excess of 10 percent for right knee patellofemoral pain syndrome are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence of record does not show a current conjunctivitis disability that is related to the Veteran's active duty service. 2. The evidence of record does not show a current hernia disability or residuals thereof that is related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. A conjunctivitis disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, (2017). 2. A hernia disability or residuals thereof was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the issues decided herein, the record reflects that the Veteran was provided all required notice in the letter mailed in November 2010, prior to the issuance of the August 2011 rating decision on appeal. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. All appropriate development to obtain the Veteran's pertinent, service treatment records and post-service private medical records has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim for entitlement to service connection for conjunctivitis and hernia disabilities. The Board is also unaware of any such records. Moreover, the Veteran was afforded appropriate VA examinations. VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Service Connection - Conjunctivitis and Hernia The Veteran contends that he has a current conjunctivitis disability that began during service and has continued to the present. The Veteran also contends that he was treated for a hernia during active service. The Veteran's service treatment records show the Veteran sought treatment for bilateral eye irritation in July and August 1996; he was given artificial tears for complaints of dry eyes. Records dated in May and October 1995 note treatment for bilateral conjunctivitis. A September 2004 record demonstrates the Veteran sought treatment for a ventral hernia; no diagnosis was noted. Prior to separation from service, the Veteran's original claim for VA compensation for conjunctivitis and hernia disabilities was received in November 2010. The report of a December 2010 VA general examination demonstrates the Veteran's report of a left groin hernia during service. He stated that the condition began from lifting and moving heavy items. The Veteran denied any current symptoms. He also reported that he did not receive any treatment subsequent to his in-service treatment, to include hospitalization or surgery. Examination for the abdomen demonstrates that there was no evidence of striae on the abdomen wall, distension of superficial veins, ostomy, tenderness to palpation of the abdomen or flank, palpable mass, splenomegaly, ascites, liver enlargement, aortic aneurysm, or diastasis recti. The examiner noted that there was no evidence of an inguinal, ventral, or femoral hernia. The examiner concluded that there was no current diagnosis of a hernia, as there was no pathology to render a diagnosis. The report of a January 2011 VA eye examination demonstrates the Veteran reported that he was diagnosed with conjunctivitis during service. He indicated that the condition had existed for 10 years. The Veteran denied any distorted vision, enlarged images, redness, swelling, discharge, glare, haloes, floaters, sensitivity to light, watery eyes, or blurred vision. He stated that he was not currently receiving any treatment for his eye condition. The Veteran also denied hospitalization or surgery for his eye condition. He concluded that he did not experience any functional impairment from his condition. Examination of the eyes did not reveal conjunctivitis; both lenses were intact and the slit lamp examination was normal. The examiner found that there was no current diagnosis of conjunctivitis. While the Veteran's statements are competent evidence as to whether he experienced eye or abdominal pain during service and after service, and to describe the extent of any symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to render his statements as competent evidence on matters such as medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The Veteran's statements are not competent evidence to diagnose an eye or abdominal disorder or to link the claimed disorders to his military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran reported the events in service and after service, and described the symptoms he experienced to the VA examiner, who considered this competent evidence and, based on their ability, knowledge, and experience in the medical field, provided a competent medical opinion that the Veteran did not have a current diagnosis of a conjunctivitis or hernia (to include residuals) disorder. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the Veteran did not complain of eye or abdominal pain; in fact, during the aforementioned examinations, he denied seeking treatment for the claimed disabilities after service. With respect to the claimed hernia disability, he further denied any current residuals. Moreover, the evidence does not show that the Veteran has a conjunctivitis (eye) or hernia (abdominal) disability, nor have such diagnoses been present at any time during the period of the appeal. Thus, without a current diagnosis of an eye and/or abdominal disability, service connection is not warranted. Accordingly, the Board must conclude that service connection is not warranted for these claimed disabilities. The Board has duly considered the benefit of the doubt doctrine. However, for the reasons explained above, the Board has determined that the preponderance of the evidence is against the Veteran's claims, so that doctrine is not applicable to these claims. ORDER Entitlement to service connection for conjunctivitis is denied. Entitlement to service connection for a hernia and residuals thereof is denied. REMAND The Board finds that additional development is necessary regarding the remaining service connection and increased rating claims. Specifically, private treatment records and current VA examinations must be obtained. In an April 2017 letter from D.M., NP, the Veteran's treating nurse practitioner indicated that the Veteran was an established patient at Sacred Heart Medical Group for several years. D.M. asserted that the Veteran continued to seek treatment for pain and decreased range of motion of his right shoulder, low back, and lower extremities. She asserted that the Veteran was assessed and referred to physical therapy, as well as orthopedic physicians for his right shoulder, low back, and lower extremities. In addition, D.M. stated that the Veteran sought treatment multiple times over the years for recurrent skin infections, to include MRSA (methicillin-resistant Staphylococcus aureus) on his face and upper thighs. She concluded that the Veteran reported that he experienced the same skin infections during active service. The Board notes that there are no post-service private treatment records from Sacred Heart Medical Group of record. As the aforementioned private treatment records are potentially relevant to the claims for service connection and increased ratings, further development to obtain these records is in order. 38 C.F.R. § 3.159 (c)(1). Regarding the claims for service connection for skin conditions of the face and hands and legs and feet, the Veteran contends that he experienced rashes and skin problems since active service. In light of the Veteran's complaints and the aforementioned private treatment records which demonstrate a current skin disability, the Board finds this information sufficient to trigger VA's duty to develop medical-nexus evidence in connection with the Veteran's claim of service connection for a skin disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With respect the increased rating claims, the record reflects the Veteran was most recently afforded an examination to determine the current degree of severity of his lumbar spine, impairment of the cutaneous and sciatic nerves of the lower extremities, right shoulder, and right knee disabilities in December 2010. The Veteran asserts that the report of the examination in December 2010 does not accurately reflect the severity of his symptoms. Further, the aforementioned letter from D.M. corroborates the Veteran's assertion. Therefore, contemporaneous examinations are warranted to ensure that the record reflects the current severity of the Veteran's service-connected lumbar spine, impairment of the cutaneous and sciatic nerves of the lower extremities, right shoulder, and right knee disabilities with findings responsive to the applicable rating criteria. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include private treatment records from Sacred Heart Medical group located Panama City, Florida, from February 2011 to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. The Veteran should be provided an examination by a physician with sufficient expertise to address the etiology of the Veteran's skin disorder(s). All pertinent evidence of record must be made available to and reviewed by the VA examiner. Based on the review of the record and the examination results, the examiner should identify all skin disorders that have been present during the period of the claim. With respect to each such disorder, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder originated during service or is otherwise etiologically related to the Veteran's service. In providing the opinion(s), the examiner must address the Veteran's contention that he has experienced ongoing skin infections since active service. The examiner must also address the April 2017 letter from D.M., NP, which indicates that the Veteran sought treatment multiple times over the years for recurrent skin infections, to include MRSA on his face and upper thighs. The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 3. The Veteran should be scheduled for a VA examination by an examiner with sufficient expertise to determine the current degree of severity of the Veteran's service-connected lumbar spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The AOJ should ensure that the examiner provides all information required for rating purposes, including range of motion testing (to include the extent of any additional limitation of motion resulting from functional impairment and/or pain) and neurological testing. The Veteran's lay assertions regarding the severity of his service-connected spine condition should be considered and discussed and the examiner should describe in detail all functional impairment resulting from the Veteran's service-connected lumbar spine disability. 4. The Veteran should also be scheduled for a VA examination by an examiner with sufficient expertise to determine the current degree of severity of his service-connected bilateral lower extremity cutaneous and sciatic nerve impairment disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The AOJ should ensure that the examiner provides all information required for rating purposes. The Veteran's lay assertions regarding the severity of his service-connected disabilities should be considered and discussed and the examiner should describe in detail all functional impairment resulting from the Veteran's service-connected bilateral lower extremity cutaneous and sciatic nerve impairment disability. 5. The Veteran should also be scheduled for a VA examination by an examiner with sufficient expertise to determine the current degree of severity of his service-connected right shoulder disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The AOJ should ensure that the examiner provides all information required for rating purposes, including range of motion testing (to include the extent of any additional limitation of motion resulting from functional impairment and/or pain). The Veteran's lay assertions regarding the severity of his service-connected right shoulder disability should be considered and discussed and the examiner should describe in detail all functional impairment resulting from the Veteran's service-connected right shoulder disability. 6. Finally, the Veteran should be scheduled for a VA examination by an examiner with sufficient expertise to determine the current degree of severity of his service-connected right knee disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The AOJ should ensure that the examiner provides all information required for rating purposes, including range of motion testing (to include the extent of any additional limitation of motion resulting from functional impairment and/or pain), stability testing and any other testing deemed warranted. The Veteran's lay assertions regarding the severity of his service-connected right knee condition should be considered and discussed and the examiner should describe in detail all functional impairment resulting from the Veteran's service-connected right knee disability. 7. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claims. 8. The AOJ should also undertake any other development it determines to be warranted. 9. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs