Citation Nr: 18154295 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 13-18 585A DATE: November 29, 2018 ORDER Entitlement to service connection for sarcoidosis is denied. Entitlement to service connection for ulcerative colitis is denied. Entitlement to service connection for a kidney condition is denied. Entitlement to service connection for a thyroid condition is denied. REMANDED Entitlement to an initial compensable rating for pseudofolliculitis barbae with post-inflammatory hyperpigmentation is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that sarcoidosis began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that ulcerative colitis began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that a kidney condition began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that a thyroid condition began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for sarcoidosis have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). 2. The criteria for service connection for ulcerative colitis have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). 3. The criteria for service connection for a kidney condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). 4. The criteria for service connection for a thyroid condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to December 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from December 2005, September 2012, and February 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2018. A transcript of the hearing is associated with the electronic claims file. In a July 2013 statement of the case, the RO denied the Veteran’s claims for service connection for sarcoidosis, ulcerative colitis, a thyroid condition, and a kidney condition due to no new and material evidence. However, the Board notes that new and material evidence was not needed because the Veteran’s clarifying April 2007 notice of disagreement was timely, as it was filed within 60 days of the RO’s March 2007 letter requesting clarification. Accordingly, no new and material evidence was needed to proceed on the Veteran’s original claims of service connection for sarcoidosis, ulcerative colitis, a thyroid condition, and a kidney condition. The Board will address these issues as original claims. Service Connection Generally, to establish service connection 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.” 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 injury or 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). Service connection may also be granted for listed chronic diseases if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection cannot be granted “[i]n the absence of proof of a present disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for sarcoidosis. The Veteran initially filed an application for service connection for sarcoidosis in November 2004. He was given a VA examination in June 2015, wherein it was noted that he had been diagnosed with sarcoidosis in 1995, well after his separation from service. The examiner went on to note that the Veteran’s sarcoidosis was not active and he had no symptoms. The examiner finally opined that the Veteran’s 20-year quiescent sarcoidosis was not proximately due to exposure to fuel and fumes during service, explaining that she was not aware of any general medical consensus or literature that would support the Veteran’s claim that fuel and fumes exposure leads to sarcoidosis. Moreover, the examiner noted that in 2014 there was no radiologic evidence of sarcoidosis. The Board finds this opinion to be competent and well-reasoned. Even assuming the Board were to find a current disability, which the record does not support, and an in-service event, of jet fuel exposure, the preponderance of the evidence is against the finding of a medical nexus with regard to the Veteran’s sarcoidosis. His service treatment records are silent for any complaints or treatment of sarcoidosis and his first diagnosis was not made until approximately 17 years after separation from service. Furthermore, the record does not contain any additional medical opinions. The question of causation of sarcoidosis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence alone, and the Veteran's own opinion is nonprobative evidence. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation of service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As such, entitlement to service connection for sarcoidosis is denied. 2. Entitlement to service connection for ulcerative colitis. The Veteran first filed for service connection for ulcerative colitis in November 2004 and was given a VA examination in September 2005. The examiner noted a colonoscopy consistent with Crohn’s disease as well as multiple small ulcers in the Veteran’s stomach in 2002, but found that the Veteran’s current medical problems cannot be attributed to his history of ulcer disease that was present in service. The examiner explained that while the Veteran had a history of pyloric channel ulcer in April 1978 in service, there was documentation of complete healing on two endoscopies in July 1978 and October 1978. As the Veteran’s prior ulcers were completely healed in 1978, the examiner found the more recent ulcers found in 2002 were unrelated. The Veteran was given a second VA examination regarding his colitis in July 2015. Here, the examiner found that the Veteran did not have a current intestinal condition. The examiner noted the prior colitis diagnosis, but found that it was not proximately due to military service explaining that colitis was not found on repeat colonoscopies in April 2009 and October 2014 and that the Veteran’s gastrointestinal system was reported as normal on his December 1978 separation exam. Thus, even assuming the Board finds a current disability and an in-service disease by resolving all doubt in favor of the Veteran, the preponderance of the evidence is against the finding of a medical nexus between the two. Although the Veteran did have an occurrence of ulcer disease during service, such condition was treated and completely healed prior to his separation from service. Moreover, the Veteran’s most recent diagnosis of ulcerative colitis occurred approximately 23 years after his separation from service and both VA examiners opined that this occurrence was not related to his time in service. The question of causation of ulcerative colitis involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence alone, and the Veteran's own opinion is nonprobative evidence. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation of service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. Accordingly, service connection for ulcerative colitis is denied. 3. Entitlement to service connection for a kidney condition. The Veteran was given a VA examination with regard to his kidney condition in July 2015 and was found to have a diagnosis of asymptomatic simple renal cysts in both kidneys, diagnosed in September 2007 and January 2012. Thus, the Veteran is found to have a current disability. The Veteran claims that his kidney condition is the result of being exposed to jet fuels and fumes while in service. However, the VA examiner opined that he was unaware of any general medical consensus or medical literature that would provide scientific evidence to support the Veteran’s claim that his bilateral simple renal cysts are caused by or the result of exposure to jet fuel fumes. The examiner further opined that it was less likely than not that the Veteran’s renal cysts arose due to fuel exposure in service. The Board finds this opinion to be competent and well-reasoned. Therefore, while the Board finds an in-service event, specifically, exposure to jet fuels and fumes, the preponderance of the evidence is against a finding of a medical nexus between the two. The Veteran’s renal cysts were not diagnosed until approximately 29 years after his separation from service and the record does not contain any other medical nexus opinion. The question of causation of a kidney condition involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence alone, and the Veteran's own opinion is nonprobative evidence. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation of service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. Accordingly, service connection for a kidney condition is denied. 4. Entitlement to service connection for a thyroid condition. The Veteran was also given a VA examination for his thyroid condition in July 2015. Here, the Veteran was found to have a current diagnosis of hyperthyroidism, which he claimed was due to exposure to jet fuels and fumes during service. Nevertheless, the examiner opined that the Veteran’s hyperthyroidism did not start in service, is not related to in-service fuel exposure, and did not start within one year of discharge from service. The examiner did note that treatment for the Veteran’s hyperthyroidism resulted in a development of hypothyroidism, but that it was less likely than not that either condition was related to exposure to jet fuels or fumes during service. The Board finds this opinion to be competent and well-reasoned. The record does not contain any additional medical opinions. The question of causation of hyperthyroidism involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence alone, and the Veteran's own opinion is nonprobative evidence. It should be noted that the record indicates that the Veteran was first treated for hyperthyroidism in 1981, during a second period of service. However, this period of service from August 1981 to July 1982 was found to be dishonorable for VA purposes and therefore cannot be considered with regard to service connection. While the Veteran has a current disability and an in-service event, the Board finds the preponderance of the evidence is against the finding of a medical nexus between the two. Accordingly, service connection for a thyroid condition is denied. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for pseudofolliculitis barbae with post-inflammatory hyperpigmentation is remanded. The RO granted the Veteran service connection for both pseudofolliculitis barbae and post-inflammatory hyperpigmentation, but evaluated them together at 0 percent, effective June 21, 2012. In reaching this evaluation the Veteran was given an August 2012 VA examination, wherein it was opined that 2-4 percent of his exposed skin areas were affected. Pursuant to Diagnostic Code (DC) 7806, in part, a 10 percent rating for dermatitis is appropriate when at least 5 percent, but less than 20 percent of the entire body is affected, or at least 5 percent, but less than 20 percent of the exposed areas are affected. The Veteran was given a second VA examination in July 2015 with regard to his pseudofolliculitis barbae and post-inflammatory hyperpigmentation, but the examiner did not provide an evaluation with regard to what percentage of the Veteran’s body was affected by his service-connected conditions. Accordingly, the Veteran must be afforded another VA examination in order to determine what percentage of his body is affected by his pseudofolliculitis barbae and post-inflammatory hyperpigmentation in order to assign a correct evaluation under DC 7806. The matter is REMANDED for the following action: 1. Schedule the Veteran for another VA examination for his service-connected pseudofolliculitis barbae and post-inflammatory hyperpigmentation and have the examiner answer the following questions: (a.) What percentage of the Veteran’s entire body is affected by his pseudofolliculitis barbae and post-inflammatory hyperpigmentation? (b.) What percentage of the Veteran’s exposed areas are affected by his pseudofolliculitis barbae and post-inflammatory hyperpigmentation? (c.) Has the Veteran required intermittent systemic therapy such a corticosteroids or other immunosuppressive drugs for a duration of less than six weeks during the past 12-month period for his pseudofolliculitis barbae and post-inflammatory hyperpigmentation? TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel