Citation Nr: 1805135 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-42 680 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a right upper extremity disability, claimed as a right hand disorder. 4. Entitlement to service connection for tuberculosis, to include residuals of exposure to tuberculosis. 5. Entitlement to service connection for a skin disorder, claimed as a rash. 6. Entitlement to service connection for a left lower extremity disability. 7. Entitlement to service connection for dental condition for compensation purposes. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to March 1965. This case was previously before the Board of Veterans' Appeals (Board) in November 2014, when it was remanded for further development. Following the requested development, the VA Appeals Management Center in Washington, D.C. granted entitlement to service connection for a dental condition involving teeth numbered 8 and 9 for treatment purposes only. However, that was not a full grant of the benefits sought on appeal, as it did not consider the possibility of service connection for dental condition for the purposes of receiving VA compensation. Accordingly, that issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The VA Appeals Management Center confirmed and continued the denials of service connection of entitlement to service connection for cervical spine, lumbar spine, right upper extremity, and left lower extremity disorders; tuberculosis, a rash, and a dental condition for compensation purposes. Thereafter, the case was again remanded in March 2016. The issues of service connection for cervical spine and right upper extremity disabilities are addressed in the REMAND portion of the decision below. In August 2014, the Veteran had a video conference with a Veterans Law Judge from the Board. FINDINGS OF FACT 1. A lumbar spine disability, diagnosed primarily as, arthritis, was first manifested many years after service, and the preponderance of the evidence is against finding that it is in any way related thereto. 2. The presence of chronic, identifiable tuberculosis, to include due to exposure, has not been established. 3. A skin disorder was first manifested many years after service, and the preponderance of the evidence is against finding that it is in any way related thereto. 4. A left lower extremity disability, diagnosed primarily as residuals of left medial and left lateral menisci tears, was first manifested many years after service, and the preponderance of the evidence is against finding that it is in any way related thereto. 5. The Veteran's inservice dental trauma did not cause a loss of substance of the body of either the maxilla or the mandible or result in disease such as osteomyelitis. CONCLUSIONS OF LAW 1. A lumbar spine disability is not the result of disease or injury incurred in or aggravated by service, and lumbar arthritis may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5013, 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 2. Tuberculosis is not due to a disease or injury incurred in or aggravated by service and it may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5013, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 3. A skin disease is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5013, 5103A; 38 C.F.R. §§ 3.159, 3.303. 4. The left lower extremity disability is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5013, 5103A; 38 C.F.R. §§ 3.159, 3.303. 5. The criteria for service connection for dental condition for compensation purposes have not been met. 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.381, 4.150 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, the claimant has a responsibility to present and support a claim for VA benefits. 38 U.S.C. § 5107 (2012). VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The claimant must provide enough information to identify and locate the existing records supporting his claims, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. 38 C.F.R. § 3.159. In July and October 2009, VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete his claims for service connection. VA then obtained identified and available evidence, performed examinations, and conducted an August 2014 video conference with a Veterans Law Judge from the Board. In November 2015, the Board informed the Veteran that the Veterans Law Judge who held the August 2014 video conference was unavailable to participate in the decision on the Veteran's appeal. The Board offered the Veteran a new hearing before a Veterans Law Judge who would be available to participate in the decision; however, the Veteran declined that offer. In light of the foregoing, the Board finds no evidence of any VA error in notifying or assisting the Veteran in the development of his claims; and therefore, the Board will proceed to the merits of the appeal. During his August 2014 video conference, the Veteran testified that a lumbar spine disability, tuberculosis, a skin rash, a left lower extremity disability, and a dental condition all had their onset in or as a result of incidents which occurred in service. Therefore, he maintained that service connection was warranted. However, after carefully considering the Veteran's claims in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against those claims. The Veteran and other lay persons who have submitted statements on his behalf are competent to report his symptoms and what he experienced during and since his separation from service. For example, they are competent to report when he first experienced chronic back pain . Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no evidence to suggest that they are competent by training or experience to diagnose the etiology of any of the claimed disabilities. The question of an etiologic relationship between any current disability and service, or between any current disability and any service-connected disability involves a medical determination which a lay person is not competent to address. Thus, the question of etiology of the disorders at issue may not be competently addressed by lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (2009). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. A similar presumption exists for tuberculosis if the disorder is demonstrated to have been compensably disabling within three years of a veteran's separation from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307. In addition, service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Lumbar Spine The Veteran's service entrance examination report is negative for any complaints or clinical findings of a lumbar disability of any kind. In October 1963, he complained of a one day history of a backache in association with a reaction to a flu vaccine. In February 1964, he complained of left lower back and left lower extremity pain after carrying a 26 pound radio up a hill. The diagnosis was a back strain. Despite those incidents, he served the remaining year of service as a light weapons infantryman, without any complaints or clinical findings of a chronic, identifiable back disability of any kind. Indeed, during his service separation examination, his spine and lower extremities were found to be normal. A chronic, identifiable back disability was not manifested until April 1997, when VA x-rays revealed minor, degenerative joint disease at L5-S1. There is no competent evidence linking degenerative joint disease to service. The normal medical findings at the time of the Veteran's separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). More recent medical records, such as the report of a February 2015 VA examination, show that since April 2013, the Veteran's low back disability has been primarily diagnosed as degenerative disc disease and spinal canal stenosis. Although he underwent a laminectomy and fusion of the lumbar spine in August 2014 and continues to experience low back pain, there remains no competent evidence linking any low back disorder to service. Absent competent evidence of a chronic, identifiable lumbar disability in service, and absent competent evidence of a nexus between his current low back disability and service, the Veteran does not meet the criteria for service connection. Accordingly, service connection is not warranted. Tuberculosis The Veteran's service medical records, including the reports of his service entrance and separation examinations, are negative for any complaints or clinical findings of tuberculosis. Indeed, during his service separation examination, he specifically denied that he then had, or had ever had, tuberculosis, or that he had ever lived with anyone who had tuberculosis. During treatment at the Twelve Oaks Medical Center in March 2006, the Veteran had a positive tuberculosis skin test. That test result was shown more than 40 years after his separation from service, and there were no findings that the appellant actually suffered from tuberculosis, or that tuberculosis was in any way related to service. As above, the normal medical findings at the time of the Veteran's separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. Maxson. Nevertheless, in February 2015, the Veteran was examined by VA to determine the nature and etiology of any tuberculosis found to be present. Following the February 2015 VA examination and review of the record, the examiner stated that there were no definitive findings of tuberculosis. That opinion is consistent with the Veteran's extensive medical records both during and since service. While multiple chest X-rays have shown a granuloma, they have consistently been negative for any active pulmonary disease, including tuberculosis. In an April 2016 addendum, the VA examiner stated that there was insufficient evidence to state when the granuloma occurred or what it was related to. The examiner did note that a calcified granuloma could be caused by numerous processes and that it was only discovered recently. In light of the foregoing, the Board finds the preponderance of the evidence against the Veteran's claim. Absent any evidence of tuberculosis in service or a current established diagnosis of tuberculosis, the Veteran does not meet the criteria for service connection. Accordingly, service connection for tuberculosis is not warranted. Rash The report of the Veteran's service entrance examination shows that he when he entered service, his skin was normal. In March 1964, the Veteran complained of a one day history of a facial rash, and there were findings of scaly lesions in his beard area. However, there were no further findings of a skin disorder of any kind during his remaining year of service; and during his service separation examination, his skin was found to be normal. A skin disorder, diagnosed as dyshydrosis, was first found to be manifest at a VA treatment session in September 1993. In December 1993 and January 1994, respectively, the claimant was treated for eczema-like lesions on his hands and for tinea pedis. Not only did those findings date more than twenty-five years after the Veteran's separation from service, there was no evidence that they were in any way related to service. Maxson. In March 2009, the Veteran's wife reported that the appellant had a rash on his back, which he stated came from wearing a wool shirt in service. However, the Veteran was not treated for an itchy rash on his back until January 1994. The diagnosis was tinea versicolor, and no competent evidence has been received to substantiate a finding of a nexus between any diagnosed skin disorder and service. More recent VA outpatient treatment records such as those from VA in November 2013 show that the Veteran continues to have a rash on his back. However, the competent evidence of record remains negative for findings of a nexus between any rash and service. During the February 2015 VA examination, it was noted that the Veteran had a sub-epidermal fibrosis removed from his left shoulder (a disorder for which service connection has already been established). Otherwise a skin disorder was not found. In sum, the preponderance of the most probative evidence is against a finding that a skin disorder, claimed as a rash on his back, is in any way related to service. Absent any evidence of a chronic identifiable skin disorder in service, and absent competent evidence linking a skin disorder to service, the Veteran does not meet the criteria for service connection. Accordingly, service connection for a skin disorder is not warranted. Left Lower Extremity The report of the Veteran's service entrance examination is negative for any complaints or clinical findings of a left lower extremity disability of any kind. In February 1964, the complained of left lower extremity pain after carrying a 26 pound radio up a hill. There were, however, no findings entered regarding any left lower extremity disability. Following that incident he served the remaining year of service as a light weapons infantryman, without any complaints or clinical findings of a chronic, identifiable left lower extremity disability of any kind. Indeed, during his service separation examination, his lower extremities were found to be normal. Medical records from the Baylor Family clinic show that the Veteran was treated for left lower extremity disability many years after service. In December 2006, the Veteran reported non-traumatic knee pain. An MRI confirmed the presence of a torn left lateral meniscus, moderate synovitis, and a moderate popliteal cyst. In October 2008, he reported edema and pain to the left ankle, knee, and leg since April 2008. Not only were these findings more than 40 years after service, there were no findings that they were in any way related thereto. Since 2008, the Veteran has been treated for complaints of left leg pain and weakness. The diagnoses included a left meniscal tear in 2009. In April 2010 and February 2015 VA examined the Veteran to determine the nature and etiology of any lower left extremity disorder found to be present. Both VA examiners concurred that the Veteran's left lower extremity disability had occurred many years after service and was unrelated thereto. In this case the preponderance of the evidence is against a finding that the Veteran's lower left extremity disorder, diagnosed primarily as residuals of left lateral and medial menisci tears, is related in any way to service. Absent any evidence of a chronic identifiable left lower extremity disorder in service, or a nexus between the post-service left knee disorders and service, the Veteran does not meet the criteria for service connection. Accordingly, service connection for a left lower extremity disorder is not warranted. Dental Condition In a April 2015 decision which granted entitlement to service connection for a dental condition for treatment purposes only, the RO found that two of the Veteran's front teeth, numbers 8 and 9, had been knocked out as a result of inservice dental trauma. Service connection for a loss of teeth will be considered for compensation purposes, if it is due to a loss of substance of the body of either the maxilla or the mandible provided that the bone loss is due to either trauma or disease such as osteomyelitis and not to the loss of the alveolar process as a result of periodontal disease. 38 U.S.C. 1712; 38 C.F.R. 3.381, 4.150. In this case, there is no evidence that the inservice dental trauma caused a loss of substance of the body of either the maxilla or the mandible, or resulted in disease such as osteomyelitis. Indeed, during a March 2016 VA dental examination, it was found that the Veteran's remaining teeth were not in good shape due to severe periodontitis. He was scheduled to have full mouth extractions and a complete set of upper and lower dentures. Because the Veteran's inservice dental trauma did not cause a loss of substance of the body of either the maxilla or the mandible or result in disease such as osteomyelitis, it does not meet the criteria for service connection for a dental condition for compensation purposes. Accordingly, compensation is not warranted, and the appeal is denied. Additional Considerations In arriving at these decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for tuberculosis is denied. Entitlement to service connection for a skin disorder, claimed as a rash, is denied. Entitlement to service connection for a left lower extremity disability is denied. Entitlement to service connection for dental condition for VA compensation purposes is denied. REMAND During his VA treatment in May 2009, it was noted that the Veteran had undergone right hand surgery in 1973. Copies of the records associated with that surgery have not been associated with the claims file. The evidence, such as an October 2008 VA treatment record, shows that the Veteran's claimed right hand disability is manifested by complaints of tingling and numbness and has been associated with cervical stenosis and degenerative disc disease. Given that association, and given the outstanding 1973 evidence concerning the Veteran's right hand, the claim of entitlement to service connection for a cervical spine disability will be held in abeyance pending completion of additional development. In light of the foregoing, the case is REMANDED to the Agency of Original Jurisdiction (AOJ) for the following action: 1. Ask the Veteran for the name and address of the health care provider who performed his hand surgery in 1973. Then request the records associated with that surgery directly from the health care provider identified by the Veteran. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the surgery was performed by a health care provider affiliated with the Federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency from whom they are sought. If the surgery was performed by a health care provider not affiliated with the federal government, and the requested records are unavailable, notify the Veteran and his representative in accordance with the provisions of 38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159 (e). 2. When the actions requested have been completed, undertake any other indicated development, such as the scheduling of any additional VA examinations. Then readjudicate the issues of entitlement to service connection for right upper extremity and cervical spine disabilities. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs