Citation Nr: 18144417 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-18 293 DATE: October 24, 2018 ORDER Entitlement to service connection for low back degenerative disc disease is denied. Entitlement to service connection for deep vein thrombosis of the legs is denied. REMANDED Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a skin disability, claimed as chloracne of the face, back and legs, and basal cell sarcoma of the ears, neck and eyes, to include as due to exposure to herbicides is remanded. Entitlement to service connection for type 2 diabetes mellitus, including as due to exposure to herbicides is remanded. Entitlement to service connection for brain tumor with scar, including as due to exposure to herbicides is remanded. FINDINGS OF FACT 1. The Veteran does not have current low back degenerative disc disease. 2. The Veteran does not have a current diagnosis of deep vein thrombosis of the legs, or any other vascular disorder shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for low back degenerative disc disease have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 2. The criteria for entitlement to service connection for deep vein thrombosis legs disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1963 to July 1983, when he retired. The Veteran’s claims of entitlement to service connection for chloracne of the face, back and legs, and basal cell sarcoma of the ears, neck and eyes, to include as due to exposure to herbicides were adjudicated separately by the RO. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Considering the record contains variously diagnosed skin disorders the Board has recharacterized the issue to entitlement to service connection for a skin disability to include all diagnosed skin disorders. See Id. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309(a). Service connection may 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). Certain chronic diseases (including arthritis), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period (one year for arthritis) following discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Low Back Degenerative Disc Disease (DDD) The Veteran claims service connection is warranted for his low back DDD. An in-service June 1966 radiographic report reveals a negative study of the lumbosacral spine. In his February 1983 medical history report for retirement, the Veteran noted he had recurrent back pain. Subsequent to that report, a service treatment record dated in May 1983 shows he was seen with complaints of left lower back irritation for three days with subsequent pain for one day. An April 2018 post-service VA-contract examination report reveals the Veteran reported muscle tension in his back. There was no diagnosis rendered regarding the low back. The record contains no evidence of a current diagnosis of a low back disability since service. The Veteran does not receive treatment from VA for his low back, and the private medical records in his claims file does not show a diagnosis of a low back disability. The threshold requirement here is that there must be competent evidence that the Veteran now has or during the pendency of the claim has had a diagnosis of a chronic low back disability for which service connection is sought. The preponderance of the evidence, in this instance, is against a finding that he has at any time during the pendency of the claim had such disability. The post-service medical evidence of record pertinent to this matter consists of a notation in a VA medical examination report. The Board notes that the record does not show that the Veteran has received a diagnosis of any low back disability, during the pendency of this claim, and he has not sought treatment for a low back disability. While the Veteran is competent to observe that he has had symptoms of a low back disability in the past, the diagnosis of low back DDD is a medical question; it requires medical expertise and training. The Veteran is a layperson and does not point to factual data or a medical opinion that support he has any such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the Veteran has not presented a valid claim of service connection for low back DDD and the appeal in this matter must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In considering the above evidence, the Board is cognizant of the holding of Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). In that decision, the Federal Circuit held that, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. This matter is distinguishable, however, because here low back pain was indicated in a service treatment report, and there was no mention of low back pain in any post-service medical report. The Board finds that the most probative evidence of record shows that the Veteran did not have a diagnosis of low back DDD at any time during the pendency of the appeal. Accordingly, the preponderance of the evidence is against the claim of service connection for low back DDD, and the claim must be denied. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Deep Vein Thrombosis Legs The Veteran claims service connection is warranted for deep vein thrombosis of the legs. His service treatment records are negative for any complaints, treatment or diagnosis of deep vein thrombosis of the legs. His February 1983 retirement medical examination shows a normal vascular system on clinical evaluation. Post-service medical records reveal that in November 2005 he underwent a venous examination prior to undergoing his first sclerotherapy treatment session. The diagnoses noted were varicose veins lower extremity with inflammation (stasis dermatitis), venous insufficiency, varicose veins with other complication, leg pain and edema of the legs. In August 2006 the Veteran was examined by his private physician and underwent a duplex ultrasound of the deep and superficial systems of the legs. The diagnoses were varicose veins, venous insufficiency, leg pain, inflammation, stasis dermatitis, and edema. Examination of the legs revealed all deep veins demonstrated compressibility without evidence of intraluminal thrombus or increased echogenicity. Further, the long saphenous vein system displayed compressibility without evidence of thrombophlebitis. The impression of venous reflux from non-functioning venous valves were noted in both legs, resulting in convoluted varicose complexes. Incompetent valves resulting in reticular veins and varicosities were noted in both legs. The deep system was within normal limits without evidence of obstruction or insufficiency. While the medical evidence provides diagnoses associated with the Veteran’s vein system, there are no treatment records or medical opinions suggesting he has a current diagnosis of deep vein thrombosis of the legs. As noted, the deep veins of the legs demonstrated compressibility without evidence of intraluminal thrombus. The Board recognizes that as a layperson the Veteran may, in some circumstances, opine on questions of diagnosis and etiology. See Jandreau, supra. However, while he is competent to provide lay description of symptoms, he is not competent to determine whether such symptoms constitute a chronic disability, let alone one of in-service etiology. Such a diagnosis and finding of medical etiology regarding a vascular disorder requires specific medical knowledge and training, which he does not possess. Even assuming for the sake of argument that the Veteran had or currently has deep vein thrombosis of the legs, or a related disorder, the Board finds that the evidence of record does not support a finding of service connection, because there is a lack of competent evidence of a nexus between the claimed disorder and active service. There is no mention of deep vein thrombosis of the legs or other vein disease in the Veteran’s service treatment records. It was not until 2005 that symptoms of vein disorder were noted in post-service medical records, approximately 22 years following active service, which is evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Given these facts, there is no reasonable likelihood that a VA examination and opinion would result in findings supporting the Veteran’s claim, and as such there is no basis for remanding for such an examination and opinion. 38 C.F.R. § 3.159(c)(4). In short, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Increased initial rating for PTSD The Veteran was afforded a VA mental health examination in April 2018, but no Supplemental Statement of the Case was issued following this examination, which was conducted prior to certification of this case to the Board in August 2018. This constitutes a procedural error requiring correction on remand. 38 C.F.R. §§ 19.9, 19.31. Service connection for Type 2 Diabetes mellitus The Veteran contends he has type 2 diabetes mellitus due to exposure to herbicides in service. The Veteran’s personnel records confirm he had service in the Republic of Vietnam. As such, he is presumed to have been exposed to herbicides (Agent Orange). A December 2017 private medical report notes, “Diabetes mellitus, type II, insulin dependent…” under “Other Pertinent Diagnoses:” and “Active Problems[.]” There is no write-up to support this notation. The Board finds that a VA examination is necessary to ascertain whether the Veteran has a current diagnosis of type 2 diabetes mellitus. Service connection for Brain Tumor with Scar The Veteran asserts that his brain tumors are related to his active service, to include herbicide exposure. Service records are silent for any complaints, treatment or diagnosis of a brain tumor. December 2017 private medical reports show diagnoses of brain, right occipital mass, biopsy and resection – solitary fibrous tumor/hemangiopericytoma; he underwent a brain resection procedure. The Veteran has not been afforded an examination to determine the nature and etiology of his brain tumor with scars disability. As such, a remand for a VA examination is warranted. Service connection for Skin Disability and Basal Cell Sarcoma The Veteran claims service connection for chloracne of the face, back and legs, and basal cell sarcoma of the ears, neck and eyes due to exposure to herbicides while serving in Vietnam. The service treatment records and post-service private medical records show the Veteran has had diagnosed skin disorders of psoriasis, fungus infection, shingles, actinic keratoses, left leg epidermoid cyst, seborrheic keratosis, rosacea, verrucoid keratosis and skin cancer. The Veteran has not been afforded an examination to determine the nature and etiology of his skin disabilities. As such, a remand for a VA examination is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine whether he has a current diagnosis of type 2 diabetes mellitus. The claims file should be made available. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The Board would point out that the Veteran is presumed to have been exposed to herbicides. 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and etiology of his brain tumor with scar disability. The claims file must be reviewed, and all appropriate tests and studies should be conducted. The examiner is asked to identify the most likely etiology for the Veteran’s brain tumor with scar; specifically, whether it is at least as likely as not (50 percent or greater probability) that such disability is related to an in-service injury, event, or disease, including exposure to herbicide agents (Agent Orange). It should be noted that it is not sufficient to merely state that the condition is not presumptively caused by exposure to herbicide agents. A complete rationale for all opinions must be provided. 3. Schedule the Veteran for a VA dermatology examination to determine the etiology of his skin disability. The claims file should be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner is asked to list all current diagnoses of the skin, and, for each diagnosis, provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin disability is etiologically related to service, including herbicide agent exposure therein. A complete rationale for all opinions must be provided. 4. Any readjudication, including the issuance of a Supplemental Statement of the Case, must include the issue of entitlement to an increased initial rating for PTSD and consideration of the cited April 2018 VA examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Young, Counsel