Citation Nr: 18153536 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 12-27 572 DATE: November 28, 2018 ORDER Entitlement to service connection for extensive burn scars of the neck and chest is denied. Entitlement to service connection for a sweat gland disorder with associated dyspnea is granted. FINDINGS OF FACT 1. The Veteran’s extensive burn scars of the neck and chest pre-existed his entrance into active service and were not permanently aggravated by service beyond its natural progress. 2. The Veteran’s sweat gland disorder with associated dyspnea began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for extensive burn scars of the neck and chest have not been met. 38 U.S.C. §§ 1110, 1131, 1153 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017). 2. The criteria for entitlement to service connection for a sweat gland disorder with associated dyspnea have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). INTRODUCTION The Veteran served on active duty from March 2011 to August 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in Reno, Nevada. In a December 2013 decision, the Board denied the Veteran’s claim for entitlement to service connection for extensive burn scars of the neck and chest, with sweat gland disorder and dyspnea. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veteran’s Claims (Court). In a June 2015 Memorandum Decision, the Court vacated and remanded the Board’s decision for further development. In October 2015, the Board remanded the case for action consistent with the June 2015 Memorandum Decision. The appeal was returned to the Board in April 2017, at which time the Veteran’s claim was again denied. The Veteran once more appealed the Board’s decision to the Court, and in a May 2018 Memorandum Decision, the Court reversed the Board’s determination in its April 2017 decision that the presumption of soundness was rebutted for the Veteran’s sweat gland disorder and dyspnea. The balance of the Board’s April 2017 decision, however, was set aside and the claim remanded for re-adjudication consistent with the Court’s decision. In light of the Court’s May 2018 Memorandum Decision, the Veteran’s claim has been recharacterized, as reflected on the title page. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for extensive burn scars of the neck and chest Initially, the record reflects the Veteran sustained extensive burns of his anterior neck and anterior chest in a fire accident when he was 3 years old. Prior to his entrance into active service, he underwent multiple surgical procedures to address the burns to his neck and chest. The Veteran’s extensive burn scars of the neck and chest, as well as skin graft surgical scars, were noted upon the Veteran’s entrance into active service in 2011. Therefore, the Board finds the Veteran’s extensive burn scars of the neck and chest pre-existed service, and as such, service connection may only be granted based on an aggravation of this pre-existing disability. In deciding a claim based on aggravation, after the presence of a preexisting condition has been established, the Board must determine (1) whether there has been any measured worsening of the condition during service, and (2) whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). The Veteran was afforded a VA skin examination in October 2011. Based on the Veteran’s service treatment records (STRs), VA and private records, lay statements and physical examination, the examiner opined the Veteran’s pre-existing extensive burn scars of the neck and chest were not aggravated by his active service. The Veteran underwent an additional VA examination in September 2016. On that occasion, the examiner opined the Veteran’s burn scars of the neck and chest, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In support of this opinion, the examiner stated that after the Veteran’s short time in the military, his scars showed no clinical attention, noting that his post-military record was silent regarding problems with scars. Upon a review of the evidence of record, the Board finds service connection is not warranted for extensive burn scars of the neck and chest. The evidence of record is against finding that the Veteran’s pre-existing extensive burn scars of the neck and chest were aggravated beyond its natural progression by his active military service. The Board notes the preponderance of the evidence is against the Veteran’s claim; and as such, service connection for the Veteran’s extensive burn scars of the neck and chest must be denied. 38 C.F.R. §§ 3.102, 3.306. 2. Entitlement to service connection for a sweat gland disorder with associated dyspnea The Veteran seeks service connection for a sweat gland disorder with associated dyspnea, which he contends originated in service and continues to the present. Specifically, he alleges his sweat gland disorder was the result of a heat stroke he suffered during Basic Training. The medical evidence of record reflects a diagnosis of sweat gland disorder and anhidrosis. Further, the STRs confirms the Veteran suffered a heat stroke during a forced march in April 2011, two weeks after reporting for Army Basic Training at Fort Benning, Georgia. As the current disability and in-service event criteria have been met, the Veteran’s claim hinges on whether a nexus exists between his current disability and in-service injury. In its May 2018 Memorandum Decision, the Court found that the Board erred in finding that the Veteran was not entitled to the presumption of sound condition for his gland disorder and dyspnea. Consequently, the Court reversed the Board's finding that the Veteran is not entitled to the presumption of soundness and reversed the Board's determination that the presumption of soundness does not apply to the Veteran's sweat gland disorder and dyspnea. Notably, the Court observed that a sweat gland disorder, difficulty regulating temperature, and dyspnea were not noted upon the Veteran’s entrance into service. In this regard, the Court stated that the Veteran underwent three military examinations in the months preceding his service; none of the examiners noted sweat gland or breathing difficulties. The Court also observed the Veteran underwent two private preservice examinations, after which both examining physicians opined that despite the Veteran’ extensive scarring, he had no restrictions on activity in the military; notably, one examiner stated that the Veteran suffered neither from breathing problems nor difficulty regulating temperature. The STRs reflect that while on a training exercise in April 2011, the Veteran fainted from dyspnea and heat stroke. On that occasion, he was treated for symptoms of shortness of breath, wheezing, chest pain, dizziness or fainting spells, sweating impairment, and heat stress. These symptoms lasted for several days after the heat stroke. In May 2011, the Veteran was diagnosed with a sweat gland disorder. Consequently, the Veteran was taken off normal unit assignment as a result of an inability to regulate body temperature by sweating. In July 2011, a Medical Evaluation Board (MEB) diagnosed him with chest and neck scar tissue with altered heat tolerance due to skin changes in sweating, noting that the condition was service aggravated. The MEB noted that the condition was service aggravated and suggested the Veteran be discharged. In October 2011, the Veteran was afforded a VA examination. On that occasion, the examiner diagnosed anhidrosis. However, the examiner noted that the Veteran did not have a separate respiratory disability to which his symptoms of dyspnea could be attributed. In an April 2013 letter, the Veteran’s private physician stated that the Veteran had a condition of heat intolerance, which could cause dizziness and falls. In an April 2016 statement, the Veteran reported having a heat-injury in 2014, while moving an empty pallet in his civilian occupation. Further, the Veteran stated that he became disoriented, stumbled, and fell, injuring his leg. Based on a review of the evidence of record, the Board finds that service connection is warranted for the Veteran’s sweat gland disorder. As stated above, the July 2011 MEB recommended the Veteran be discharged due to his altered heat tolerance and skin changes in sweating. The Veteran was discharged in August 2011 and filed for benefits based on service connection for burn scars, sweat gland disorder, and dyspnea in September 2011. Given the proximity of time between his discharge from service and filing of his initial claim for benefits for this disease, the Board is satisfied that the nexus criterion has been met 38 C.F.R. § 3.303. The Board acknowledges the October 2011 and September 2016 examiners opined the Veteran’s sweat gland disorder with associated dyspnea was not related to service. However, the Board finds these opinions are inadequate for adjudication purposes, as they are based on the erroneous determination that the Veteran’s sweat gland disorder pre-existed his service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on inaccurate factual premise has no probative value). In sum, the Board is satisfied that the evidence in favor and against the Veteran’s claim is at least in equipoise. Therefore, service connection is granted for the Veteran’s sweat gland disorder. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel