Citation Nr: 18151346 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 10-37 429 DATE: November 20, 2018 ORDER Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is denied. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is denied. Entitlement to service connection for scars on the left hand is denied. REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to an increased rating for asthma is remanded. Entitlement to service connection for COPD is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a heart condition, claimed as coronary artery disease, is remanded. Entitlement to service connection for gastrointestinal reflux disorder (GERD) is remanded. Entitlement to a compensable rating for scars, right hand is remanded. FINDINGS OF FACT 1. The Veteran is diagnosed with degenerative disc disease of the cervical and lumbar spine, but the preponderance of the evidence does not support that it was due to event, injury, or disease in active service, or that it developed within one year of separation from active service. 2. The Veteran does not have scars on the left hand. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for entitlement to service connection for degenerative disc disease (DDD) of the cervical spine have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3. The criteria for entitlement to service connection for scars on the left hand have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1967 to March 1971. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains at least one issue that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on the matter of entitlement to service connection for Parkinson’s disease and heart disease as secondary to exposure to Agent Orange or other herbicide agents. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. To establish a right to compensation, a Veteran must show: (1) 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. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for degenerative disc disease (DDD) of the cervical and lumbar spine The Veteran contends that he developed DDD of the cervical and lumbar spine during active service, to include as due to a car accident. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of lumbar and cervical degenerative disc disease (DDD), and evidence shows that a car accident occurred during April 1970, the preponderance of the evidence weighs against finding that the Veteran’s cervical and lumbar spine DDD began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Pursuant to 38 C.F.R. § 3.303(b) when a chronic condition (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases (e.g., arthritis) may be also presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). The Veteran’s service treatment records (STRs) show that the Veteran had a normal entry examination in June 1967. In April 1970, the Veteran was in a car accident and reported low back pain. However, a subsequent February 1971 service separation examination report indicates that examination of the Veteran’s spine and neck was within normal limits. Post-service, the Veteran was afforded a general VA examination in April 1971. The examination report does not contain any complaints pertaining to the Veteran’s neck or spine and the examiner noted no musculoskeletal abnormalities. An October 1996 VA cervical spine X-ray was interpreted as “normal appearing bony structures of the cervical spine.” An April 2013 VA examiner opined that the Veteran’s lumbar and cervical DDD is not at least as likely as not related to an in-service injury, event, or disease, including the car accident with associated lower back pain complaints. The rationale was that the documented injury during active service resulting from the car accident was to the thoracic or scapular area. Additionally, the Veteran told the examiner that the current neck and back pain resulted from a more recent injury sustained after lifting a heavy object. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). At a March 2014 private medical treatment appointment, the Veteran reported that he had the pain in his neck since lifting a heavy object two years earlier. The Veteran was diagnosed with cervical spondylosis. At a December 2014 medical appointment, the Veteran reported that his cervical pain started four years earlier after lifting a trash can over his head. Treatment records show the Veteran was not diagnosed with DDD in the lumbar spine until about 2012, about 40 years after his separation from service. While the Veteran is competent to report having experienced symptoms of neck and back pain consistently in recent years since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were a result of a car accident in active service. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Similarly, the Board also finds that the evidence does not establish a continuity of symptomatology and therefore a nexus as arthritis as a chronic disease as per 38 C.F.R. § 3.309. As already discussed above, the Veteran’s separation examination was normal. Therefore, the evidence fails to show a continuity of cervical or lumbar spine arthritis symptomatology dating back to his military service. As the preponderance of the evidence is against finding that the Veteran’s current cervical and lumbar DDD was related to active service, the benefit of the doubt doctrine is not for application, and the claim for service connection is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for scars on the left hand The Veteran contends that he has a left hand scar since active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of left hand scar and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s STRs contain an February 1971 separation examination. The examiner noted the Veteran’s right hand/arm scarring. However, no scar of the left hand was identified. In August 2010, the Veteran was afforded a VA examination for scarring. The examiner diagnosed a right hand scarring condition, but noted that the left hand showed no scars. The Veteran’s available medical treatment records do not document a currently diagnosed left hand scar. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the weight of the evidence of record does not demonstrate that the Veteran has a current left hand scar, the Board must deny the claim on appeal for entitlement to service connection. In reaching the above conclusion, the Board has not overlooked the Veteran’s statements supporting his claim. While the Veteran believes that he has a left hand scar related to service, the VA examiner did not see such a scar. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran previously worked as an emergency medical technician, and accordingly, would be able to provide competent medical evidence, the Board finds the opinion of the VA examiner and the body of the medical evidence lacking documentation of a left hand scar to be more probative than the Veteran’s lay assertions. King v. Shinseki, 700 F.3d 1339, 1344 (2012). Moreover, the opinion of the VA examiner is consistent with the Veteran’s separation examination that did not document the presence of left hand scarring. Accordingly, service connection for a left hand scar is denied. REASONS FOR REMAND 1. Entitlement to service connection for allergic rhinitis is remanded. The Veteran contends that his allergic rhinitis is related to asbestos exposure. Asbestos exposure was conceded by the RO due to the Veteran’s work during active service in a boiler room of a ship. The Veteran submitted an opinion from his brother, who is also a licensed respiratory specialist, who indicated that the Veteran’s service-connected asthma could be intertwined with the Veteran’s allergic rhinitis and exposure to asbestos. At the July 2010 VA examination, the examiner opined that the Veteran’s allergic rhinitis was not related to the Veteran’s active service or a result of exposure to asbestos. VA should obtain an opinion to reconcile this information.   2. Entitlement to an increased rating for asthma is remanded. At the June 2018 Board hearing, the Veteran contended that his asthma disability has worsened since the previous VA examination. The Veteran stated that he had been in the emergency room on four recent occasions due to respiratory distress. The VA should provide the Veteran an examination to determine the current severity of the Veteran’s asthma disability. The Veteran submitted an opinion from his brother, who is also a licensed respiratory specialist, who indicated that the Veteran’s service-connected breathing disorders, including possible COPD, could be related to exposure to asbestos. 3. Entitlement to service connection for COPD is remanded. The Veteran contends that he has COPD that is related to asbestos exposure. The Veteran’s medical records are unclear as to whether the Veteran has a current diagnosis of COPD. The June 2015 VA medical provider noted that the Veteran’s pulmonary function tests showed no evidence of COPD. At the July 2010 VA examination for respiratory disorders, the Veteran was diagnosed with asthma and sleep apnea, but not COPD. The Veteran submitted a medical opinion dated August 2018 in which the examiner opines that the Veteran’ COPD is related to asbestos exposure. VA should obtain a new VA examination to determine if the Veteran has COPD and if it is related to asbestos exposure or otherwise to active service. 4. Entitlement to service connection for sleep apnea is remanded. The Veteran has a sleep apnea diagnosis and utilizes a CPAP machine. The Veteran submitted an opinion from his brother, who is also a licensed respiratory specialist, who indicated that the Veteran’s service-connected asthma could be intertwined with the Veteran’s sleep apnea and exposure to asbestos. The July 2010 VA examiner opined that the Veteran’s sleep apnea was not related to active service or to exposure to asbestos but was likely related to obesity. VA should obtain an addendum opinion to address the discrepant opinions. 5. Entitlement to service connection for a heart condition is remanded. The Veteran’s medical treatment records indicate that he has had stents placed in his heart due to heart disease. The Veteran submitted a medical opinion dated August 2018 indicating a connection between the Veteran’s heart disease and asbestos exposure. However, it is unclear from the medical records what heart condition, if any, the Veteran currently has. The Veteran should be afforded a VA examination to determine what heart conditions he may have and if they are related to active service or to asbestos. 6. Entitlement to service connection for gastrointestinal reflux disorder (GERD) is remanded. The Veteran’s STRs show multiple complaints of stomach pain and possible gastritis. The Veteran contends that he has GERD as a result of exposure to asbestos or that it is related to the symptoms exhibited in service. The Veteran was afforded a general VA examination in April 1971; the examiner recorded no abnormal gastrointestinal symptoms. The Veteran’s post-service medical records show a long history of gastrointestinal complaints and ultimate diagnosis of GERD. The Veteran has not been afforded a VA examination that address this issue since 1971. 7. Entitlement to a compensable rating for scars, right hand is remanded. At the June 2018 Board hearing, the Veteran contended that his right hand scar had worsened, that it now is painful and his hand goes numb. The Veteran should be afforded a VA examination to determine the current severity of the right hand scar disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disorder and the current level of severity of the Veteran’s asthma. The examiner must opine whether the Veteran has a respiratory diagnosis other than asthma (specifically whether he has COPD), and whether it is at least as likely as not related to an in-service injury, event, or disease, including the complaints of hyperventilation. For secondary service connection, the examiner should opine whether any respiratory disorder is at least as likely as not (1) proximately due to service-connected disability such as asthma, or (2) aggravated beyond its natural progression by service-connected disability. Further, the examiner should opine whether the Veteran’s respiratory disorder other than asthma is related to asbestos exposure (conceded by the RO), and reference the statement from the Veteran’s brother dated June 2018 and the private medical opinion dated August 2018, and the prior VA examination opinion dated July 2010. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of allergic rhinitis or other sinus disorder. The examiner must opine whether the Veteran has a diagnosis of allergic rhinitis or other sinus disorder, and whether it is at least as likely as not related to an in-service injury, event, or disease, including the complaints of hyperventilation. For secondary service connection, the examiner should opine whether any sinus disorder is at least as likely as not (1) proximately due to service-connected disability such as asthma, or (2) aggravated beyond its natural progression by service-connected disability. Further, the examiner should opine whether the Veteran’s sinus disorder is related to asbestos exposure (conceded by the RO), and reference the statement from the Veteran’s brother dated June 2018 and the prior VA examination opinion dated July 2010. 3. Obtain an addendum opinion to address the June 2018 opinion from the Veteran’s brother regarding the Veteran’s sleep apnea possibly being related to service-connected asthma or asbestos. For secondary service connection, the examiner should opine whether sleep apnea is at least as likely as not (1) proximately due to service-connected disability such as asthma, or (2) aggravated beyond its natural progression by service-connected disability. Further, the examiner should opine whether the Veteran’s sleep apnea is related to asbestos exposure (conceded by the RO), and reference the statement from the Veteran’s brother dated June 2018 and the prior VA examination opinion dated July 2010. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any gastrointestinal disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the complaints of stomach pain and gastritis in active service. For secondary service connection, the examiner should opine whether any gastrointestinal disorder is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. Further, the examiner should opine whether the Veteran’s gastrointestinal disorder is related to asbestos exposure (conceded by the RO). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the complaints of chest pain and hyperventilation in active service. For secondary service connection, the examiner should opine whether any heart disorder is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. Further, the examiner should opine whether the Veteran’s heart disorder is related to asbestos exposure (conceded by the RO) and reference both the August 2018 medical opinion submitted by the Veteran. (The Veteran also has a claim for heart disease as due to exposure to Agent Orange, however the claim is delayed due to ongoing court adjudication. Therefore, the examiner is not requested to make an opinion relating any heart disorder to Agent Orange exposure.) 6. Schedule the Veteran for a VA examination to determine the current level of severity of his service-connected right hand scar disability. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel