Citation Nr: 18149515 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 12-19 599 DATE: November 9, 2018 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a skin disorder is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s back disability was not incurred in or aggravated by active duty service. 2. Resolving all reasonable doubt in favor of the Veteran, his skin disorder is related to active service. 3. The Veteran does not have peripheral neuropathy of the upper extremities. 4. The Veteran does not have peripheral neuropathy of the lower extremities. CONCLUSIONS OF LAW 1. The criteria for service connection for back disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria for service connection for a skin disorder have been satisfied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 3. The criteria for service connection for peripheral neuropathy of the upper extremities have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 4. The criteria for service connection for peripheral neuropathy of the lower extremities have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1971 to December 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In September 2012, the Veteran attended a Travel Board hearing before the undersigned. A transcript of the hearing is of record. These matters were previously before the Board in November 2014, at which time it was remanded for additionally development. Specifically, the Board directed that the Veteran’s reserve service records and post-service VA medical treatment records be obtained and that the Veteran be afforded back, skin, and, if warranted, peripheral neuropathy VA examinations. The Board notes that the RO attempted to obtain additional military personnel records and service treatment records (STRs); however, a response was returned in February 2015 indicating that all available records had been sent. The Veteran’s VA medical treatment records have been obtained and associated with the claims file. Additionally, the Veteran was afforded VA examinations for each of his claimed disabilities. Accordingly, the Board finds that there has been substantial compliance with the remand orders and no prejudice to the Veteran will result from the adjudication of his claims. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has re-characterized the Veteran’s claims for peripheral neuropathy for the upper and lower extremities and a skin disability as they appear on the cover page. The claims originally included service connection on a secondary basis to diabetes mellitus and exposure to herbicide agents. However, in the Board’s November 2014 decision, the Board found that service connection for diabetes mellitus was not warranted and that the Veteran did not have exposure to herbicide agents. As such, the present claims will be considered for direct service connection. Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Back disability The Veteran contends that he developed a low back disability as a result of an injury he sustained during active service. Specifically, he reported that he sustained this injury while wrestling with another recruit during basic training, resulting in him rolling down some stairs and hitting his back on something hard. The Veteran’s STRs only reflect one complaint of back pain in May 1975. There is no indication in the record of the cause of the reported pain. Available post-service treatment records establish that the Veteran has had consistent complaints of low back pain since 2010. During his September 2012 hearing, the Veteran testified that he did not report the injury in service for fear of being sent home. He reported that after some time, the pain in his back went away. He noted that he did not report any other episodes of pain because, since the pain came and went, he self-medicated. The Veteran also indicated that during his time in the reserves, he was running when he felt something snap in his back. The Veteran reported that he felt the pain “once in a while.” He indicated that the pain worsened about ten years prior, in the early part of the 2000s, at which time he was diagnosed with a back disability. The Veteran was afforded a VA examination in September 2015, in which he received a diagnosis of lumbosacral strain. The Veteran reported that he has had low back pain for the last 20 years. After reviewing the Veteran’s file, including his STRs, the examiner opined that the Veteran’s current back disability was less likely than not incurred in or caused by service. The examiner reasoned that the reported pain in service occurred over 20 years ago, and available medical records did not support a finding that his back pain from service had persisted for more than 20 years after service because the back pain in service was not noted to be traumatic or degenerative. The examiner indicated that his current back disability was likely due to an injury or occupation post-service. After review of the evidence, the Board is unable to attribute the Veteran’s back disability to his military service. The earliest relevant medical evidence of record that indicates the presence of a back disability after service is 2010. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds that the VA examination provides the more probative evidence of record. The examiner noted that the Veteran’s STRs did not indicate that his complaint of back pain was due to trauma or degeneration. As such, the examiner opined that it was more likely that his current back disability had developed some time after service. While the Board acknowledges that the Veteran is competent to report symptoms of back pain, which he described as off and on and became worse years after his active service, he has not been shown to possess the medical training to render competent opinions about complex medical matters, such as the etiology of his disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a back disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107(b). 2. Skin disorder The Veteran’s STRs reflect that he was seen on several occasions over a period of months for skin problems. The records note that the Veteran complained of itching and a rash. A note dated in April 1974 indicates that the Veteran had urticaria on his legs. During his hearing, the Veteran testified that he had lumps on his body that became uncomfortable in colder weather and that he was receiving treatment for his skin disorder. Post-service treatment records note diagnoses of lipoma and seborrheic keratosis and indicate that the Veteran has received ongoing treatment for his skin disability. The Veteran’s September 2015 VA examination provided diagnoses of seborrheic keratosis; right arm lipoma, benign status post excision with no residuals; and urticaria, asymptomatic. The Veteran reported that he had a rash on his ankles for years but the symptoms come and go. The examiner noted that the Veteran presented with a history of seborrheic keratosis, which was previously diagnosed as benign lipoma and was present on his right posterior thigh, right upper arms, chest, back, and legs. The examiner opined that the Veteran’s skin disorder was less likely than not incurred in or caused by service because the available records do not show evidence of persistent symptoms of his skin condition since military service. The examiner further noted that the records did not support a direct correlation between the Veteran’s lipoma and seborrheic keratosis and the rash noted during service. In this case, a skin disability is an observable condition of which the Veteran is competent to provide lay testimony. See Layno v. Brown, 6 Vet. App. 465 (1994) As such, the Board finds the Veteran’s statements that his skin condition had its onset in service and that his symptoms have continued off and on since service to be competent and credible. Additionally, there were several documented complaints of skin problems in service, and while there is an absence of medical records for many years following the Veteran’s separation from service, the available post-service medical records indicate that the Veteran continued to receive treatment for his skin disorder. The Board acknowledges that the VA examiner provided an opinion that the Veteran’s skin disorder was less likely than not related to his active service. However, the examiner’s opinion was based solely on the lack of medical evidence since the Veteran separated from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). No other rationale was provided to support the examiner’s opinion that his current skin disability was not incurred in or caused by active service or related to the documented complaints in the Veteran’s STRs. Therefore, the Board finds that the competent and credible evidence of record is at least in equipoise as to whether the Veteran’s skin disorder was related to service. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran’s skin disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Peripheral neuropathy of the upper extremities and lower extremities STRs are silent for any complaints, treatment, or diagnoses related to any peripheral neuropathy of the upper or lower extremities. Post-service treatment records indicate that the Veteran has reported tingling, pain, and numbness in his arms, hands, and legs. The records reflect that these complaints were generally regarded as related his diabetes mellitus. There is no noted diagnosis of peripheral neuropathy or related disability in the Veteran’s post-service treatment records. At his hearing in September 2012, the Veteran testified that he experienced a feeling of pin pricks and tingling on his skin and pain in his legs at least once a month since he was diagnosed with diabetes. The Veteran was afforded a VA examination in September 2015. The Veteran reported numbness and tingling in bilateral hands on and off. The examination notes that neither the upper or lower extremities were affected; the examiner indicated that the Veteran’s neurological examination was within normal limits. Therefore, the examiner indicated that diagnosis of peripheral neuropathy for the upper or lower extremities could not be endorsed. There is no evidence of record providing a diagnosis of peripheral neuropathy or a related disorder. The Veteran is competent to report his symptoms; however, to the extent that such assertions purport to establish a current disability or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1101. Thus, evidence of a current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, the Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the upper or lower extremities. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel