Citation Nr: 18149693 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-00 706 DATE: November 13, 2018 REMANDED Entitlement to service connection for back pain is remanded. Entitlement to service connection for neck pain is remanded. Entitlement to service connection for bilateral ankle and lower leg pain is remanded. Entitlement to service connection for bilateral knee pain is remanded. Entitlement to service connection for shin splints is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a respiratory condition, to include asthma is remanded. Entitlement to service connection for a skin condition, to include eczema and dermatitis is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army Reserve from November 2007 to April 2008, and again from July 2010 to August 2011, to include service in Southwest Asia. 1. Entitlement to service connection for back pain, neck pain, bilateral ankle and lower leg pain, bilateral knee pain, shin splints, asthma, hearing loss, and tinnitus is remanded. The Veteran claims entitlement to service connection for back pain, neck pain, bilateral ankle and lower leg pain, bilateral knee pain, shin splints, asthma, hearing loss, and tinnitus. Specifically, the Veteran contends that these disabilities were incurred during his active duty service in Iraq from July 2010 to August 2011. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service-connected. 38 C.F.R. §§ 3.303(b), 3.307(a)(3). The Veteran's claimed hearing loss and tinnitus may be chronic diseases as defined by 38 C.F.R. § 3.309(a). When a disease is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. The Board finds that the Veteran has submitted competent evidence of a current disability. VA medical records and a December 2012 letter from the Veteran’s VA medical provider indicate that the Veteran has sought treatment for bilateral knee pain, neck pain, back pain, and bilateral lower leg pain. In addition, as noted above the Veteran’s reports of difficulty breathing, hearing loss and tinnitus are competent evidence of a disability. The Board further finds that the Veteran’s military personnel and service treatment records establish that an event, injury, or disease occurred during service. Specifically, the Veteran’s records establish his service in Iraq during July 2010 to August 2011. Service treatment records show treatment for knee pain, ankle pain, back pain, neck pain, shin splits, and difficulty breathing during active service. The records also establish that the Veteran served in a military occupation that would have resulted in exposure to heightened levels of military noise, including artillery and small-arms weapons fire. At present, the Veteran’s claims file does not contain the VA medical examinations or opinions necessary to comprehensively evaluate the claims. Accordingly, a remand for development of these claims is required. 2. Entitlement to service connection for a skin condition, to include eczema and dermatitis is remanded. The Veteran claims entitlement to service connection for a skin condition. Specifically, the Veteran contends that he developed a skin condition, to include eczema and dermatitis during his deployment in Iraq. The Veteran completed a VA skin diseases examination in July 2014. The examiner diagnosed the Veteran with dermatitis on the scrotum. The examiner further noted that the Veteran currently used a cream to treat the dermatitis when it re-occurred every 4 to 6 weeks. However, the examiner also stated: There is no current rash for me to evaluate. Based on his history and the medication he still uses it appears to be the same rash from 2011 which is recurring but I did not see a rash today to document and compare to his notes from the service therefore an opinion would be speculation. The examination seems to indicate that the Veteran has a current diagnosis of dermatitis, and that it may be the same dermatitis that the Veteran incurred during his active service. However, the examiner’s opinion does not address whether it is more likely than not that the Veteran’s current dermatitis was incurred during or caused by his active service. Accordingly, an addendum opinion is required for the Board to comprehensively evaluate the Veteran’s claim. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his claimed back disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether: a. The Veteran has a current back disability. b. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s back disability began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his claimed neck disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether: a. The Veteran has a current neck disability. b. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s neck disability began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for his claimed bilateral ankle and lower leg disabilities. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether: a. The Veteran has current bilateral ankle or lower leg disabilities. b. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral ankle or lower leg disabilities began during active service, are related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Schedule the Veteran for an examination with an appropriate clinician for his claimed bilateral knee disabilities. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether: a. The Veteran has current bilateral knee disabilities. b. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral knee disabilities began during active service, are related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Schedule the Veteran for an examination with an appropriate clinician for his claimed shin splints. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether: a. The Veteran has a current shin splints. b. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s shin splints began during active service, are related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. Schedule the Veteran for an examination with an appropriate clinician for his claimed hearing loss and tinnitus. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether: a. The Veteran has a current diagnosis of hearing loss. b. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss began during active service, is related to an incident of service, or began within one year after discharge from active service. c. The Veteran has a current diagnosis of tinnitus. d. If so, is it at least as likely as not (50 percent or greater) that the Veteran’s tinnitus began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 7. Schedule the Veteran for an examination with an appropriate clinician for his claimed respiratory condition, to include asthma. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether: a. The Veteran has a current diagnosis of a respiratory condition, to include asthma. b. If so, is it at least as likely as not (50 percent or greater probability) that the Veteran’s respiratory condition began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 8. Return the Veteran’s claims file to a qualified VA skin diseases clinician so a supplemental opinion may be provided. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s dermatitis of the scrotum began during active service or is related to an incident of service. The examiner’s opinion should address the Veteran’s service treatment record noting treatment for a skin disease during active service in April 2011. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 9. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel