Citation Nr: 18154270 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-19 694A DATE: November 29, 2018 ORDER The application to reopen the claim for entitlement to service connection for a skin disability is granted. The application to reopen the claim for entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for psoriasis is granted. Entitlement to service connection for a memory loss disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for dysentery is denied. Entitlement to an evaluation in excess of 30 percent for irritable bowel syndrome is denied. FINDINGS OF FACT 1. In a rating decision dated May 2011, the RO denied the Veteran’s claim for service connection for a skin disability on the basis that there was insufficient evidence to demonstrate in-service disease or injury or a nexus between the Veteran’s service and his current conditions; the Veteran did not appeal this decision or submit new evidence within one year of the denial. 2. Evidence received since the May 2011 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a skin disability, specifically, a nexus opinion regarding the Veteran’s service and his psoriasis. 3. In a rating decision dated May 2011, the RO denied the Veteran’s claim for service connection for bilateral hearing loss on the basis he did not manifest a hearing loss disability; the Veteran did not appeal this decision or submit new evidence within one year of the denial. 4. Evidence received since the May 2011 rating decision is cumulative and redundant of evidence already of record and does not relate to unestablished facts necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss, specifically, the presence of a hearing loss disability is not established. 5. Resolving reasonable doubt in the Veteran’s favor, his psoriasis is due to his active service. 6. The Veteran’s memory loss is compensated as a symptom of service-connected psychiatric disability and he does not manifest a separate and distinct memory loss disability under VA statutes and regulations. 7. Cervical spine disease or injury is not shown in service and cervical spine disability is not otherwise due to service. 8. The Veteran is compensated for irritable bowel syndrome (IBS) and he does not manifest a separate and distinct dysentery disability under VA statutes and regulations. 9. For the entire rating period on appeal, the Veteran’s IBS has manifested in severe symptoms of alternating diarrhea and constipation, and he is in receipt of the maximum schedular evaluation. CONCLUSIONS OF LAW 1. The May 2011 rating decision denying service connection for a skin disability is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2010). 2. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for a skin disability has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. The May 2011 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2010). 4. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for bilateral hearing loss has not been submitted; the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 5. The criteria for service connection for psoriasis have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 6. The criteria for service connection for a memory loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 7. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 8. The criteria for service connection for dysentery have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 9. A rating in excess of 30 percent for IBS is not warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.20, 4.21, 4.114, Diagnostic Code 7319 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1989 to March 1992. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The language of 38 C.F.R. § 3.156(a) is a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” is “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); see Meyer v. Brown, 9 Vet. App. 425, 429 (1996); see King v. Brown, 5 Vet. App. 19, 21 (1993). The presentation of new arguments based on old evidence already of record does not constitute the presentation of new evidence. Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006). 1. The application to reopen the claim for entitlement to service connection for a skin disability is granted. In a rating decision dated May 2011, the RO denied the Veteran’s claim for service connection for a skin disability on the basis that there was insufficient evidence of a link between current skin disabilities and his service. The Veteran did not appeal the May 2011 RO decision or submit new evidence within one year of the denial. Following the May 2011 decision, additional VA treatment records were obtained. The treatment records contain evidence of ongoing treatment for psoriasis and the Veteran’s contention of in-service chemical exposure that turned his skin yellow. The Board finds that after presuming the credibility of this new evidence, the evidence is material in that it would be sufficient to trigger a medical examination to address the new theory and ongoing symptoms. See Shade, 24 Vet. App. at 122 (noting that the credibility of new evidence is to be presumed); see id. at 123 (recognizing that “if VA determines that the new evidence when viewed with the old evidence would be sufficient to trigger a medical examination, then the evidence is sufficient to reopen.” (Lance, J. concurring)). Accordingly, the claim is reopened. See 38 U.S.C. §§ 5108, 7103, 7104; 38 C.F.R. §§ 3.156, 20.1100. 2. The application to reopen the claim for entitlement to service connection for a bilateral hearing loss disability is denied. In a rating decision dated May 2011, the RO denied the Veteran’s claim for service connection for bilateral hearing loss on the basis he did not manifest a hearing loss disability; the Veteran did not appeal this decision or submit new evidence within one year of the denial. On VA examination in March 2011, audiological findings reflected the Veteran’s hearing loss did not rise to the level of a disability for VA purposes. See March 2011 VA Examination. 38 C.F.R. § 3.385; Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). The “current disability” element of service connection was not shown at the time of the May 2011 decision. Since the May 2011 decision, the Veteran has not submitted any new and material evidence that pertains to the element of a current hearing loss disability. VA treatment records and private treatment records do not show under 38 C.F.R. § 3.385. Further, there is no indication of a link between his claimed hearing loss and service aside from the Veteran’s unsupported and cumulative assertion. Accordingly, there has not been evidence presented that addresses a previously unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss. Under these circumstances, the Board must conclude that new and material evidence to reopen the service-connection claim for bilateral hearing loss has not been received, and the claim is not reopened. See 38 U.S.C. §§ 5108, 7103, 7104; 38 C.F.R. §§ 3.156, 20.1100. 3. Entitlement to service connection for psoriasis is granted. Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Direct service connection generally requires credible and competent evidence showing: (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 1363, 1366 (Fed. Cir. 2009). Consistent with this framework, direct service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In March 2011, the Veteran underwent examination where tinea pedis, tinea crura, and guttate psoriasis were diagnosed. See March 2011 VA Examination. As the Veteran manifests current skin conditions, a current disability has been demonstrated. See April 2016 VA Treatment Record. As to in-service injury, the Veteran reports the onset of skin symptoms in service and since separation from active duty. See March 2011 VA Examination. The Board finds him competent to report symptoms of a skin disorder and credible as to the onset of his symptoms. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As to nexus, the evidence conflicts. An April 2016 VA treatment provider did not find a link to service. However, a March 2011 VA examiner noted the Veteran’s familial history of psoriasis could predispose him to develop a skin disorder during deployment to the Persian Gulf. The Board finds that the evidence as to nexus is in relative equipoise, and thus, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As all three elements of service connection have been established, a grant of service connection for psoriasis is warranted. 4. Entitlement to service connection for a memory loss disability is denied. The Board has considered whether new and material evidence is required to reopen this claim. See March 2014 Rating Decision. The Board finds it is not because the Veteran has continuously pursued this claim. See September 2011 Supplemental Claim; see also February 2013 Correspondence. The Veteran contends that he has a disability manifested by memory loss that is related to his service. The Board notes the Veteran is service-connected for posttraumatic stress disorder (PTSD) and is compensated for memory loss as a symptom associated with his PTSD. See August 2017 Rating Decision. There is no competent evidence of a disability manifested by memory loss that is separate or distinct from the already service-connected PTSD. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a decision is whether any of the symptomatology is duplicative of or overlapping; the appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, 6 Vet. App. at 262. Here, the Veteran is already being compensated for the manifestation of memory loss; this manifestation is contemplated in the 50 percent rating assigned the service-connected PTSD under Diagnostic Code 9411. 38 C.F.R. § 4.130, Diagnostic Code 9411. In this case, the Board finds that the most probative evidence weighs against finding that the criteria have been met for a current disability manifested by memory loss. In this regard, the Board notes that there is no medical evidence contrary to the May 2011 and August 2017 VA examination reports indicating that the Veteran’s memory loss symptoms are part and parcel of his service-connected acquired psychiatric disorder. See May 2011 VA Examination; see also August 2017 VA Examination. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have a disability manifested by memory loss that is separate from his impairment associated with the service-connected PTSD. The existence of a current disability is the cornerstone of a claim for VA disability benefits. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for a disability manifested by memory loss under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57. 5. Entitlement to service connection for a cervical spine disability is denied. The Veteran asserts service connection for neck pain. See September 2011 Claim. The Veteran has not been afforded a VA examination with respect to his claim for service connection for neck pain to obtain an opinion as to whether this disability is related to service. However, for the reasons explained in greater detail below, no such examination is required because the credible evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran’s service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, in disability compensation claims, 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, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. A VA examination under the standards of McLendon is not warranted in this case. With respect to the claimed neck pain disability, the competent and credible evidence of record does not suggest persistent or recurrent symptoms since service, or a relationship to service. A mere conclusory generalized statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (discussing the circumstances when a VA examination and opinion are required). The Board notes the service record does not contain indications of treatment for or complaints of neck pain or a cervical spine disability. See June 2013 Service Record. Further, the Veteran’s post-service records do not contain an indication of persistent or recurrent symptoms since service. See March 2011 VA Records. The Board finds that evidence of in-service injury or disease is not shown. Holton, 557 F.3d at 1366. As to a current disability, there is only one notation of mild neck discomfort in the post-service VA record. See March 2011 VA Records. The Board finds that current cervical spine disability is also not shown. As to a relationship between his claimed neck pain and service, the Board finds that the Veteran’s statements are afforded no probative value as he does not indicate with any detail the circumstances of his claimed disease or injury involving the cervical spine. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence). Moreover, none of the private treatment records report indicates a relationship between the Veteran’s claimed neck pain and service. Thus, based upon the cumulative record, the Board concludes that there is insufficient evidence of in-service injury or disease or current cervical disability, and there is no competent evidence nexus to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303. Accordingly, the claim for service connection for a cervical spine disability must be denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57. 6. Entitlement to service connection for dysentery is denied. The Veteran contends that he has a disability manifested by dysentery that is related to his service. The Board notes the Veteran is service-connected for irritable bowel syndrome (IBS). See August 2017 Rating Decision. Service and VA records show the Veteran was diagnosed with dysentery in service. However, during the appellate period, the Veteran has not manifested dysentery. See March 2011 VA Examination; see also March 2012 VA Examination. VA treatment records do not show evidence of active disease process, and, as noted above, the Veteran is compensated for IBS as due in-service gastrointestinal disease. See April 2018 VA Records. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have a disability manifested by dysentery that is separate from his impairment associated with the service-connected IBS. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there is a current disability manifested by dysentery. The Veteran’s lay assertions are therefore afforded less probative weight, and less credibility than the VA examination report. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for a disability manifested by dysentery under any theory of entitlement and service connection must be denied. See Degmetich, 104 F.3d at 1328; see also Brammer, 3 Vet. App. at 225. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57. 7. Entitlement to an evaluation in excess of 30 percent for irritable bowel syndrome is denied. Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran asserts that his IBS is more disabling than reflected in his current 30 percent rating under Diagnostic Code 7319. Diagnostic Code 7319 provides ratings for irritable colon syndrome (spastic colitis, mucous colitis, etc.). Mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, is rated as noncompensable. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, is rated 10 percent disabling. Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is rated 30 percent disabling. 38 C.F.R. § 4.114. With regard to coexisting abdominal conditions, VA regulation recognizes that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Board also notes that, with regard to the schedule of ratings for the digestive system, section 4.114 expressly prohibits, in pertinent part, the combination of ratings under Diagnostic Codes 7301 to 7329, inclusive, which include the schedular criteria for irritable colon syndrome. The Veteran has already been assigned the maximum rating of 30 percent, under Diagnostic Code 7319, and there is no legal basis upon which to award a higher or separate schedular evaluation for IBS. The Board has considered all arguments advanced on behalf of the Veteran and recognizes his feeling that a higher rating is warranted. Even providing full credence to the Veteran’s assertions, there is no legal basis upon which to assign a higher or separate schedular evaluation for IBS. Sabonis v. Brown, 6 Vet. App. 426 (1994). An increased rating in excess of 30 percent for IBS is not warranted. The Veteran has not raised any other issue and no other issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract from that service. However, as the evidence in this case does not reach the level of equipoise, the Board concludes the claims must be denied. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Trickey