Citation Nr: 18154466 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 18-28 812 DATE: November 30, 2018 ORDER Entitlement to service connection for a back disability (claimed as herniated disc) is denied. Entitlement to service connection for open-angle glaucoma is denied. REMANDED Entitlement to service connection for a skin disorder (claimed as seborrheic keratosis and idiopathic guttate hypomelanosis) is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The Veteran’s back disability has not been shown to have been incurred in or otherwise related to active service. 2. The Veteran’s open-angle glaucoma has not been shown to have been incurred in or otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for open-angle glaucoma have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to November 1965. Service Connection 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(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease 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). Back disability The Veteran contends that his current back disability (which he has characterized as herniated disc) is related to his period of active service. At the outset, the Board notes that the “current disability” element has been satisfied—on review, the Veteran’s VA treatment records show that he has been treated for back ache throughout the appeal period. The crucial question on appeal is whether this disability was incurred in service or is otherwise related to service. In this regard, the Board has thoroughly reviewed the Veteran’s service treatment records; however, these records contain no evidence of reports or treatment for back-related symptomatology. The Veteran’s November 1965 separation examination revealed that his spine was normal, and the Veteran denied any back trouble on a Report of Medical History completed at separation. The Veteran’s post-service medical records show that the first documentation of treatment for back problems was in the late 2000s, many decades after his separation from service. At no point during his appeal has the Veteran identified a particular event or injury in service that could have caused his current back problems. After carefully reviewing the entire record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a back disability. In summary, the only positive evidence indicating that his current symptomatology is related to service are his general lay statements to that effect. (Such statements are inferred from the fact that the Veteran is claiming service connection. As noted above, he has not identified any specific injuries or events in service pertaining to his claim.) To that end, the Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he has provided no evidence whatsoever of any in-service injuries, and, moreover, the question of whether his current back pathology is related to his service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376. Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his back disability, he is not competent to comment on its etiology. The Board acknowledges the Veteran’s claims that his back problems are generally related to his service. Unfortunately, there is simply no competent evidence that supports his claim. (The Board is aware that the Veteran has not been afforded a VA examination for his back disability. However, in the absence of competent evidence indicating that this disability is related to service, no VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).) In sum, because there is no competent evidence that the Veteran’s current back disability was incurred in or otherwise related to service, his claim must be denied. Open-angle glaucoma The Veteran contends that his open-angle glaucoma is related to his period of active service. As an initial matter, the Board notes that the “current disability” element has been satisfied—on review, the Veteran’s VA treatment records show that he has been treated for open-angle glaucoma throughout the appeal period. The crucial question on appeal is whether this disorder was incurred in service or is otherwise related to service. In this regard, the Board has thoroughly reviewed the Veteran’s service treatment records, but can find no evidence of reports or treatment for eye-related pathology. The Veteran’s November 1965 separation examination report revealed that an ophthalmoscopic and pupil evaluation was normal, with no indication of vision impairment, and the Veteran denied any eye or vision trouble (including the need for glasses) on his separation Report of Medical History. The Veteran’s post-service medical records reflect that he was first treated for eye problems in the late 2000s, many decades after his separation from service. At no point during his appeal has the Veteran identified a particular event or injury in service that could have caused his current eye problems. After carefully reviewing the entire record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a bilateral eye disorder, to include open-angle glaucoma. In sum, the only positive evidence indicating that his symptomatology is related to his service are his lay statements to that effect. (As with the Veteran’s claimed back disability, such statements are inferred from the fact that he is claiming service connection. As the Board observed above, he has not identified any specific injuries or events in service pertaining to his eyes.) The Board reiterates that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. However, he has provided no evidence whatsoever of any in-service eye injuries, and, moreover the question of whether his open-angle glaucoma is related to his service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376. Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his eye disorder, he is not competent to comment on its etiology. The Board acknowledges the Veteran’s claims that his eye problems are generally related to his service. Unfortunately, there is simply no competent evidence that supports his claim. (The Board is aware that the Veteran has not been afforded a VA examination for his glaucoma. However, in the absence of competent evidence indicating that this disorder is related to service, no VA examination is warranted. See McLendon, 20 Vet. App. at 83-86.) In sum, because there is no competent evidence that the Veteran’s current bilateral eye disorder was incurred in or otherwise related to service, his claim must be denied. REASONS FOR REMAND Skin disorder (claimed as seborrheic keratosis and idiopathic guttate hypomelanosis) The Veteran contends that he developed skin problems (subsequently diagnosed as seborrheic keratosis and idiopathic guttate hypomelanosis) as a result of his exposure to herbicides, including Agent Orange, while serving in Vietnam during the Vietnam War. The Veteran was afforded a VA skin diseases examination in July 2016. However, the examiner did not provide an opinion as to whether either of the diagnosed skin disorders were related to service (the examiner merely stated that neither of the diagnosed disorders were listed among the conditions associated with Agent Orange exposure, as determined by VA). Consequently, because the record is devoid of any meaningful expert analysis of the Veteran’s specific contentions, and because the Board lacks the requisite medical expertise to opine on such questions, a remand is required in order to provide a more thorough medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (holding that, even if a claimant is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). Bilateral hearing loss disability The Veteran contends that his current bilateral hearing loss developed as a result of harmful noise exposure in service. On review, his service treatment records include audiometric testing results from December 1963, June 1965, and November 1965, which reflect normal hearing under VA standards (factoring in the American Standards Association (ASA) to International Standards Organization (ISO) conversion). However, these records further show that the Veteran reported a history of ear, nose, or throat trouble on his separation Report of Medical History, and also reported that he had worn hearing aids in the past and had a history of right ear hearing loss. (In addition, he was treated for a right ear infection in October 1965.) On VA audiological examination in April 2016, audiometric testing revealed that the Veteran had a current hearing loss disability in both ears. See 38 C.F.R. § 3.385. However, the examiner opined that the disability was less likely than not caused by or a result of in-service noise exposure. By way of rationale, the examiner explained that there were “no complaints of hearing loss or services documented while in active service, or soon after the release of active duty.” In July 2016, a different VA examiner likewise determined that the Veteran’s hearing loss was not related to in-service noise exposure. In support of this finding, the examiner essentially repeated the previous examiner’s conclusion, stating, “there are no complaints or treatment for hearing loss documented while in active service.” The Board finds that a remand is warranted, as both of the VA opinions discussed above are based in inaccurate factual premises, and therefore cannot be relied upon to decide the claim. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that medical opinions based on incomplete or inaccurate factual premises are not probative). As discussed above, contrary to the examiners’ findings, the Veteran’s service treatment records do reflect reports of hearing loss, including his report of a need for hearing aids. This constitutes positive evidence of in-service hearing loss, which was not discussed in either VA opinion. (The failure to discuss this positive evidence is particularly notable given the April 2016 examiner’s conclusion that, “It is well known that prolonged exposure to noise of high intensity and short duration, such as the military type, could cause permanent damage in the structures of the inner ear.”) It is well-established that when VA provides a claimant with a medical examination or opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the issues discussed above, a new examination and opinion is necessary in order to fully evaluate the claim. The matter is REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran for the period from August 2016 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed skin disorders, to include seborrheic keratosis and idiopathic guttate hypomelanosis. The examiner must opine as to whether such disorders are at least as likely as not related to an in-service injury, event, or disease, including as due to exposure to herbicides. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss disability. The examiner must opine as to whether such disability is at least as likely as not related to in-service noise exposure. The examiner must specifically address the Veteran’s in-service reports of hearing loss (particularly right ear hearing loss, as reported in his separation Report of Medical History); reported history of hearing aid use; and history of right ear infection as noted in October 1965 clinical records. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Minot, Associate Counsel