Citation Nr: 18147940 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-19 923 DATE: November 6, 2018 ORDER Entitlement to service connection for chronic constipation is granted. Entitlement to service connection for seborrheic dermatitis and tinea versicolor is granted. Entitlement to service connection for a right eye disability is denied. Entitlement to service connection for chronic sinusitis is denied. Entitlement to service connection for chronic sweating of the feet is denied. Entitlement to service connection for scars of the breasts and abdomen is denied. Entitlement to an initial compensable rating for hypertension is denied. REMANDED Entitlement to service connection for a dental disability for compensation purposes is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for chronic throat lesions is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in her favor, the Veteran’s chronic constipation was incurred during active service. 2. Resolving reasonable doubt in her favor, the Veteran’s seborrheic dermatitis and tinea versicolor was incurred during active service. 3. The Veteran does not have a right eye disability. 4. The Veteran does not have chronic sinusitis. 5. The Veteran does not have chronic sweating of the feet. 6. The Veteran’s scars of the breasts and abdomen are related to elective surgeries performed during service; the surgeries were ameliorative in nature and did not result in any disability for VA compensation purposes. 7. The Veteran’s hypertension has not resulted in diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; and she does not have a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic constipation are met. 38 U.S.C. §§ 1110, 1117, 1118, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). 2. The criteria for service connection for seborrheic dermatitis and tinea versicolor are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for a right eye disability are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 4. The criteria for service connection for chronic sinusitis are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 5. The criteria for service connection for chronic sweating of the feet are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 6. The criteria for service connection for scars of the abdomen and breasts are not met. 38 U.S.C. §§ 1110, 1153 (2012); 38 C.F.R. §§ 3.303, 3.306 (2018). 7. The criteria for an initial compensable rating for hypertension are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2001 to December 2011 in the United States Army. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A Board hearing was scheduled in April 2018, but the Veteran failed to report for it. She has not provided good cause for her failure to appear or requested to reschedule the hearing. Therefore, her hearing request is deemed withdrawn. The Veteran also appealed the issue of entitlement to service connection for tinnitus. In an April 2017 rating decision, the RO granted service connection for that disability, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that matter is no longer in appellate status. The Board further notes that a claim for service connection for a dental disability is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). Review of the file reveals, however, that the Agency of Original Jurisdiction (AOJ) (i.e., Veterans Benefits Administration) has only adjudicated the issue of entitlement to service connection for a dental disability for VA compensation purposes. Thus, the claim for outpatient dental treatment is referred to the AOJ (which, in this case, is Veterans Health Administration) for appropriate action. Service Connection 1. Chronic Constipation The Veteran’s service treatment records indicate that she complained of abdominal pain and constipation in December 2006. In April 2010, constipation was noted and she was instructed to increase her fiber intake to 40 grams. In June 2010, she reported continued problems with constipation and stated that she used MiraLax, which was effective. After service, a September 2012 VA treatment record indicated that the Veteran had chronic constipation and used MiraLax in the past. An April 2013 list of active outpatient medications indicated that she used polyethylene glycol powder mix for constipation. In this case, the Veteran is a Persian Gulf veteran. The evidence indicates that she exhibited signs and symptoms of chronic constipation during and since active service. Therefore, the Board finds that the evidence for and against the claim of entitlement to service connection for chronic constipation is at least in equipoise. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for chronic constipation is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Seborrheic Dermatitis and Tinea Versicolor The Veteran’s service treatment records indicated that she complained hair loss and itching of the scalp in December 2002. It was also noted that she had white spots on her face. The assessment was alopecia and tinea versicolor. In November 2003, it was noted that she had scalp problems and hair loss; the assessment was seborrhea of the scalp. A November 2010 record noted that she had dryness of the scalp, skin lesions, and hypopigmented areas of the face. The diagnosis was dermatomycosis tinea versicolor. In December 2010, it was noted that she had scalp scales and hypopigmented macules scattered on her face. The diagnoses were seborrheic dermatitis and post inflammatory hypopigmentation. In February 2011, her scalp appeared clean and lacked inflammation, scales, or plaques. The physician discussed treatment options for eruptions of scalp seborrhea. After service, an April 2015 VA treatment record indicated that the Veteran was treated for seborrheic dermatitis. In August 2015, it was noted that she had multiple round dry lesions scattered on her groin, chest, and upper legs. The assessment was tinea of the skin. During a February 2016 VA examination, the Veteran reported that her seborrheic dermatitis began in her hair in about 2002. She also stated that she had outbreaks of tinea versicolor under her arms, on her back, her lower legs, and her medial thigh areas. On examination, she had seborrheic dermatitis on her forehead and behind each ear. She also had a small hypopigmented area over the mid to lower thoracic spine area, which was consistent with tinea versicolor. The diagnoses were seborrheic dermatitis and tinea versicolor. The examiner indicated that there was no evidence that the lesion on her back was related to military service. In March 2016, the Veteran submitted photographs that showed skin macules on her forehead and behind her ears. In this case, symptoms of seborrheic dermatitis and tinea versicolor were first documented during the Veteran’s active service. In addition, VA treatment records indicate that she has received treatment for seborrheic dermatitis and tinea since service. Although the VA examiner stated that there was no evidence that the tinea versicolor lesion on her back was related to service, given the diagnosis of tinea versicolor during service and the ongoing treatment on various areas of her body since service, the Board finds that the evidence for and against the claim of entitlement to service connection for seborrheic dermatitis and tinea versicolor is at least in equipoise. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for seborrheic dermatitis and tinea versicolor is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. 3. Right Eye, Chronic Sinusitis, and Chronic Foot Sweating Regarding the claimed right eye disability, a March 2004 post-deployment health assessment indicated that the Veteran reported experiencing dimming of vision, like the lights were going out. A February 2007 record indicated that an ophthalmological examination was normal. After service, a February 2014 VA treatment indicated that the Veteran complained of severe headache; a productive cough; a sore, itchy throat; dizziness at times; and blurriness in her right eye. In April 2014, she denied experiencing eye pain, blurred vision, and double vision. Regarding sinusitis, the Veteran’s service treatment records indicated that sinusitis was noted in April 2003, and chronic sinusitis was noted in May 2004. After service, the evidence does not show treatment for sinusitis. During a February 2016 VA examination, the Veteran stated that she had sinus infections since surgery to remove a sinus cyst. She reported that she was not receiving current treatment. She stated that her last sinus infection was the previous year, but that it was not bad enough for antibiotics and she was told to rinse her sinuses with saline and given allergy medications. On examination, there was no evidence of a sinus condition. The examiner also indicated that there was no evidence of a chronic sinusitis condition since that the Veteran separated from service. Regarding chronic sweating of the feet, the Veteran’s service treatment records are unremarkable for any complaints, treatment, or diagnoses relating to sweating of the feet. After service, there is no evidence of any treatment for chronic sweating of the feet. Whether service connection is claimed on direct, presumptive, or secondary basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In this case, the evidence does not indicate that the Veteran has a chronic right eye disability, chronic sinusitis, and chronic sweating of the feet. The Board has also considered the lay evidence of record. The Veteran is competent to describe what he has personally observed or experienced; however, to the extent those reports conflict with the contemporaneous medical evidence, the Board does not find those statements credible. Furthermore, the ultimate questions of diagnoses and etiology in this case extend beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. The Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). Accordingly, entitlement to service connection for a right eye disability, chronic sinusitis, and chronic sweating of the feet is not warranted. 4. Scars – Abdomen and Breasts In this case, the evidence indicates that the Veteran has well-healed surgical scars resulting from a breast lift/reduction and tummy tuck (abdominoplasty) performed during service in 2007 or 2008. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service-connected unless the disease or injury is otherwise aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). Here, the medical evidence clearly shows that that the Veteran had elective surgeries during service, including a breast lift/reduction and abdominoplasty. She does not argue nor does the evidence show that those surgeries were medically required or that the surgeries were due to disease or injury incurred in or aggravated by active service. The Board further finds that the elective surgeries performed during service did not result in any disability for VA compensation purposes. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a), (b). In pertinent part, the Board notes that there is no evidence of any current disabilities attributable to the elective surgeries other than well-healed surgical scars. As noted above, the usual effects of surgical treatment during service, having the effect of ameliorating a condition incurred before enlistment, including postoperative scars, will not be considered service-connected unless the disease or injury is otherwise aggravated by service. For the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for scars of the abdomen and breasts. Therefore, the claim for service connection for scars of the abdomen and breasts must be denied. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Increased Rating – Hypertension In this case, the Veteran’s service treatment records indicated that she had a history of gestational hypertension. In March 2011, her blood pressure was 136/99. The assessment noted hypertension and she was started on hydrochlorothiazide. A review of her blood pressure readings during service indicate that her diastolic pressure was predominantly below 100. After service, a review of the Veteran’s blood pressure readings indicate that her diastolic pressure was predominantly below 100, and that her systolic pressure was predominantly below 160. A November 2013 VA treatment record indicated that her diastolic pressure was 101; however, all other diastolic pressure readings were below 100. Although the Veteran’s hypertension requires continuous medication for control, the evidence does not indicate that she has a history of diastolic pressure predominantly 100 or more. In addition, the evidence does not indicate that she has diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. For those reasons, the Board finds that an initial compensable rating for hypertension is not warranted. 38 C.F.R. § 4.104, Diagnostic Code 7101. REASONS FOR REMAND Regarding the claimed dental disability, the Veteran maintains that this condition was caused by sinus surgery during active service. A VA examination as conducted in September 2013. The examiner found no dental trauma as a result of the sinus surgery; however, it is unclear whether he reviewed the Veteran’s claims file. The Board notes that an October 2003 surgical record indicated that she underwent enucleation of a maxillary cyst and extraction of teeth #16, 17, and 32. A December 2003 surgical record indicated that a portion of the posterior lateral wall of the maxilla was removed along with the cyst itself; that superiorly, a small bony rim of bone was removed; that teeth #2 and #3 root tips were removed; and that the alveolar bone was hand curetted. Based on the foregoing, the Board finds that a remand is necessary for an additional VA examination to determine whether the Veteran had a dental disability resulting from the sinus surgeries during service. Regarding the claimed bilateral knee disability, an April 2006 service treatment record indicated that the Veteran complained of constant pain in her knees. In June 2009, she complained of right knee pain. In June 2010, she complained of an inability to lose weight. It was noted to look at the effects of her bilateral feet and knee pain and how it affected her aerobics. The November 2013 rating decision indicated that the Veteran failed to report to a scheduled VA examination; however, notice of the VA examination is not of record and she attended several other examinations. Therefore, the Board finds that she should be afforded another opportunity to report for a VA examination to determine the nature and etiology of any right and left knee disability that may be present. Regarding the claimed chronic throat lesions, an April 2011 service treatment record indicated that the Veteran had two small lesions of the throat, which were assessed as benign neoplasms of the buccal mucosa. The November 2013 rating decision indicated that the Veteran failed to report to a scheduled VA examination; however, notice of the VA examination is not of record and she attended several other examinations. Therefore, the Board finds that she should be afforded another opportunity to report for a VA examination to determine the nature and etiology of any throat lesions that may be present. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of her claimed dental disability. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should identify all dental disabilities that are present. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present dental disability is etiologically related to her active service, to include sinus surgeries performed in 2003. A rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of her bilateral knee disability. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should identify all right and left knee disabilities that are present. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present knee disability is etiologically related to her active service. A rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of her throat lesions. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present throat lesion is etiologically related to her active service. A rationale for all opinions expressed must be provided. 5. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 6. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mishalanie, Counsel