Citation Nr: 18140624 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-39 141 DATE: October 3, 2018 ORDER Entitlement to service connection for osteomyelitis is denied. Entitlement to service connection for a left foot infection is denied. Entitlement to service connection for staph infections is denied. REMANDED Entitlement to service connection for a left elbow disorder is remanded. Entitlement to service connection for right elbow disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a left wrist disorder is remanded. Entitlement to service connection for a right wrist disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for colon resection is remanded. Entitlement to service connection for skin cancer of the bilateral shoulders and face is remanded. Entitlement to service connection for diabetes mellitus, to include as due to chemical exposure, is remanded. Entitlement to service connection for neuropathy is remanded. FINDINGS OF FACT 1. The Veteran does not have a current left foot infection that manifested in service or that is related to service. 2. The Veteran does not have osteomyelitis that manifested in service or that is related to service. 3. The Veteran does not have staph infections that manifested in service or that are related to service. CONCLUSIONS OF LAW 1. A left foot infection was not incurred in active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Osteomyelitis was not incurred in active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. Staph infections were not incurred in active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1961 to January 1962. He had additional service in the Air National Guard and the Texas Army National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision. In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Law and Analysis Neither the Veteran nor his 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 a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). The term “chronic disease,” whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is no evidence showing that the Veteran has one of the enumerated diseases. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a left foot disorder, osteomyelitis, or staph infections. The Veteran’s available service treatment records contain no complaints of, treatment for or diagnoses pertaining to a left foot disorder, osteomyelitis, or staph infections. Rather, in a January 1991 private podiatric evaluation, the Veteran reported that he stepped on a nail approximately three years earlier and subsequently developed osteomyelitis in the second metatarsal joint of his right foot. In a September 1998 private treatment note, the physician noted that the Veteran had a knee surgery six weeks earlier and was treated for a staph infection. In a November 1998 private treatment note, the Veteran related that he had an episode of staph osteomyelitis a few months ago, which developed after he had arthroscopic knee surgery. Otherwise, post-service treatment notes document treatment for fungal infections of the toenails and gout. See, e.g., April 1997, February 2000, February 2002, September 2003 private treatment notes. Moreover, during the June 2018 hearing, the Veteran reported that he cut his foot and developed osteomyelitis following service. Specifically, during the hearing, the Veteran’s representative asked the Veteran if the claims for a left foot infection and osteomyelitis had anything to do with his military service, and the Veteran responded, “No, that was after service.” See hearing transcript, p. 12. In addition, during the June 2018 hearing, the Veteran testified that he developed a staph infection after he had arthroscopic knee surgery at a private hospital following service. He stated that VA did not refer him for surgery at that hospital. Furthermore, the Veteran has not submitted or identified any evidence of a currently diagnosed condition for which service connection may be granted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Because the evidence shows that the Veteran has not had a current left foot infection, osteomyelitis, or staph infection during the pendency of the appeal, the Board concludes that service connection is not warranted, and no discussion of the remaining elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). In addition, with respect to the Veteran’s staph infection, the Board notes that compensation is not warranted under 38 U.S.C. § 1151. Under 38 U.S.C. § 1151, a veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. §1151(a). However, in this case, the Veteran testified that he developed a staph infection following arthroscopic knee surgery at a private hospital. Therefore, the provisions of 38 U.S.C. § 1151 are not applicable. As the preponderance of the evidence is against the claims for service connection, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND During the June 2018 hearing, the Veteran reported that, while he was activated during the Cuban Missile Crisis, he was injured during intensified combat training at Fort Polk, Louisiana, in 1962. Specifically, he stated that he went over the windshield of a Jeep when it hit a ditch while performing field maneuvers in tall grass. He contended that he injured his knees, shoulders, elbows, wrists, and low back and that he had nerve damage from the accident. See hearing transcript, pp. 4, 24. He indicated that he spent six days sick in quarters in the barracks following the accident and that he subsequently returned to training without being evaluated further. Id. at 5. During the June 2018 hearing, the Veteran reported that he developed skin cancer on his shoulders and face from working on the flight line during his service in the Air National Guard and from participating in field exercises at Fort Polk during his activated Army service. See hearing transcript, p. 25. He also related that he snored during service and that he was diagnosed with sleep apnea following service. Id. at 15. He contended that he developed type II diabetes mellitus as a result of chemical exposure during service. Specifically, he indicated that he was exposed to chemicals used to clean jets. Id. at 18. He further reported that he developed a heart disorder that was caused by the pressures and stress of service. Id. at 20. He also stated that he had colon polyps and a resultant colon resection caused by the food and water that he consumed during service. Specifically, he alleged that he drank contaminated water in the field at Fort Polk. Id. at 22. The Board notes that there are some service treatment records associated with the record. Specifically, the record contains a May 1957 enlistment examination report, a June 1959 separation examination report, associated reports of medical history, and a September 1961 enlistment examination report from the Veteran’s activation from October 1961 to January 1962. In addition, the claims file does not contain service personnel records verifying the Veteran’s service. In his October 2015 substantive appeal, the Veteran related that his service treatment records were likely missing because he served in special operations in the scout and reconnaissance sections. He stated that his missions required black operations in locations that were not disclosed and remain restricted or classified. Therefore, on remand, the Veteran’s complete service treatment records and service personnel records should be obtained. Moreover, the Veteran has not been afforded VA examinations in connection with his claims. Therefore, the Board finds that VA examinations and medical opinions are needed to determine the nature and etiology of any knee, wrist, shoulder, elbow, low back, heart, and colon disorders, skin cancer, sleep apnea, diabetes mellitus, and neuropathy that may be present. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his knees, wrists, shoulders, elbows, low back, skin cancer, sleep apnea, diabetes mellitus, heart, colon polyps, and neuropathy. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should be made for any outstanding private treatment records, workman’s compensation records, and disability retirement records associated with post-service on-the-job injuries. See, e.g., December 1995, February 1996 private treatment notes referencing workman’s compensation claim. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. The AOJ should secure the Veteran’s outstanding service personnel records, to include records from the Air National Guard and the Texas Army National Guard. The AOJ should request the complete service treatment records for the Veteran for all periods of service. A specific request should be made for records that reference any knee, wrist, shoulder, elbow, or low back complaints related to a 1962 training accident at Fort Polk, Louisiana. If any requested service records are not available, the AOJ should clearly document the claims file to that effect and notify the Veteran of any inability to obtain the records. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any knee, wrist, shoulder, elbow, and low back disorders and associated neuropathy that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has any knee, wrist, shoulder, elbow, and low back disorders and neuropathy that is causally or etiologically related to his military service, to include any injury or symptomatology therein. In rendering these opinions, the examiner should address the private treatment records associated with the claims file that detail on-the-job injuries during the Veteran’s post-service employment as a mechanic and maintenance worker at a national brewery. See, e.g., January 1981 private treatment note (noting history of fall at work in which Veteran hyperextended his wrist); January 1982 private treatment note (Veteran fell several months ago striking elbow on chair and treated by company physician); December 1995, February 1996 private treatment records (referencing a workman’s compensation claim); June 1997 private treatment note (noting that the Veteran’s employment required constant activity, such as lifting heavy objects); an April 1995 private treatment note (noting that the Veteran had multilevel disk disease from an on-the-job injury and that he had previous shoulder and hand surgeries and multiple on-the-job injuries); May 1995 private treatment note (noting 1993 on-the-job injury in which the Veteran ruptured his biceps tendon at the shoulder level); July 1997 private treatment note (referencing March 1994 knee injury and October 1997 on-the-job fall that resulted in knee and back injuries); September 1997 private treatment note (noting injury to lower back with severe right leg pain following period of considerable physical activity at work); April 1998 private treatment note (Veteran reported he had previous shoulder and hand surgeries from on-the-job injuries, and that he did a great deal of ladder climbing and difficult work with multiple on-the-job injuries); October 1999 private treatment note (Veteran stated that he was looking into retirement due to multiple medical problems from work-related injuries); December 2000 private treatment note (Veteran reported that he was contemplating trying to get disability from work); January 2004 workman’s compensation application (reporting July 1997 knee and back injuries). (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any skin cancer that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The Veteran has contended that he developed skin cancer of the bilateral shoulders and face due to sun exposure working on the flight line in the Air National Guard and participating in field exercises during an activation in the Texas Army National Guard. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has current skin cancer that is causally or etiologically related to his military service, to include any sun exposure therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The Veteran has contended that he snored during service. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has current obstructive sleep apnea that is causally or etiologically related to his military service, to include any injury or symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any diabetes mellitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The Veteran has contended that he developed diabetes mellitus as a result of chemical exposure during service. Specifically, he reported that he was exposed to chemicals used to clean jets. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has current diabetes mellitus that is causally or etiologically related to his military service, to include any chemical exposure therein. In rendering this opinion, the examiner should address a December 1995 private treatment note in which the Veteran reported that he was exposed to some chemicals in his post-service maintenance job. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any heart disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The Veteran has contended that he developed a heart disorder from the pressures and stress of service. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current heart disorder that is causally or etiologically related to his military service, to include any pressure or stress therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 8. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any colon polyps that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The Veteran has contended that he developed colon polyps which resulted in a colon resection as a result of consuming contaminated food and water at Fort Polk during his active service. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran’s colon polyps and resultant colon resection are causally or etiologically related to his military service, to include any food and water contamination therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 9. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel