Citation Nr: 18154896 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-07 698 DATE: December 4, 2018 ORDER The claim of entitlement to an increased rating for left shoulder tendonitis with degenerative changes, rated as 10 percent prior to May 23, 2016, and 20 percent therefrom, is dismissed. New and material evidence having been received, the claim of entitlement to service connection for a bilateral hip disorder, to include joint pains and osteoarthritis, is reopened. To this extent only, the claim is granted. The claim of entitlement to service connection for a skin disorder diagnosed as leukoderma, and also claimed as a skin condition of the face and hands, is denied. The claim of entitlement to service connection for jaundice as due to medications taken for a service-connected condition is denied. REMANDED The claim of service connection for a bilateral hip disorder, to include joint pains and osteoarthritis, is remanded. The claim of entitlement to service connection for a muscle and joint pains of the legs is remanded. The claim of entitlement to an effective date earlier than September 13, 2012, for the grant of service connection for irritable bowel syndrome (IBS), is remanded. FINDINGS OF FACT 1. Prior to promulgation of a decision in the appeal, the Veteran indicated on a July 2017 VA FORM 27-0820, Report of General Information, that she wished to withdraw her appeal regarding entitlement to an increased rating for left shoulder tendonitis with degenerative changes. 2. New and material evidence that tends to substantiate the claim of service connection for a right and left hip disorder has been received, since the final rating decision that denied service connection for these conditions in October 2009. 3. The Veteran has complaints of a skin disorder, attributed to a known clinical diagnosis of leukoderma. This skin disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. 4. The preponderance of the evidence is against a finding that the Veteran has residuals of jaundice due to medications taken for a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to an increased rating for left shoulder tendonitis with degenerative changes, rated as 10 percent prior to May 23, 2016, and 20 percent therefrom, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 2. New and material evidence has been received, and the claim of service connection for bilateral hip disorders, to include osteoarthritis and joint pains, is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for leukoderma have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for service connection for jaundice have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to January 1999 and from January 2002 to August 2003. The claim of entitlement to service connection for sleep apnea is on a separate appeal stream. As to that issue, the Veteran has requested a videoconference hearing. See VA FORM 9 from August 2018. Thus, this claim has not been incorporated into the current appeal stream. Withdrawn Claims An Increased Rating for a Service-Connected Left Shoulder Disorder. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b)(3) (2018). Additionally, withdrawal may be made by the appellant on the record at a hearing. 38 C.F.R. § 20.204(b)(1) (2018). The Veteran withdrew the appeals of her claim of entitlement to an increased rating for left shoulder tendonitis with degenerative changes, rated as 10 percent prior to May 23, 2016, and 20 percent therefrom, as noted upon VA FORM 27-0820, Report of General Information in July 2017. VA issued her a letter in August 2107 that explained that consideration of this claim had been discontinued. She was informed that she had 30 days from this letter to provide information that she had not intended to withdraw this claim. She did not do so. 38 C.F.R. § 20.204(b)(1) (2018). There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed. New and Material Service Connection for Right and Left Hip Disorders. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). Historically, the Veteran filed his initial claims for service connection for right and left hip disorders in October 2008. The RO denied the claims in an October 2009 rating decision in that no chronic hip disorders were noted in service or until many years after discharge. Moreover, there was no nexus as to current hip problems and service. The Veteran did not submit a notice of disagreement (NOD) with the denial or submit any additional evidence respecting those claims within one year of the notice letters. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the notice letters, the October 2009 rating decision is final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claims of service connection for right and left hip disorders. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156 (2018). Since the October 2009 rating decision, evidence has been submitted that reflects diagnoses of osteoarthritis of multiple joints, to include the hips. See, e.g., VA examination report of October 2013. It was not previously clear that actual arthritis had been shown. Based on the above evidence, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for bilateral hip disorders has been received, and the claims are reopened. See 38 C.F.R. § 3.156(a) (2018); Shade v. Shinseki, 24 Vet. App. 110 (2010). To this extent only, the appeal is granted. As discussed further below, the claims of entitlement to service connection for right and left hip disorders must be remanded for further development. 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 (2012); 38 C.F.R. § 3.303(a) (2018). 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) (2018). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112 (2012); 38 C.F.R. § 3.304 (2018). See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as DDD, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). Service connection may also be established for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that manifests either during active service in the Southwest Asia Theater during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examinations, or laboratory tests. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1) (2018). (In the instant case, as explained in further detail below, the record reflects that the Veteran had service in Southwest Asia (SWA) during the Persian Gulf; however, her skin disorder has been attributed to known clinical diagnosis of leukoderma/vitiligo, and, therefore, 38 U.S.C. §1117 (2012) and 38 C.F.R. § 3.317 (2018) are inapplicable to her claim.) 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 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection for a Skin Disorder (Also Claimed as Skin Condition of the Face and Hands). Initially, it is noted that service connection is already in effect for a rash of the hands for boils on the legs. It is claimed that leukoderma is of service origin. Of record are numerous pictures of the Veteran’s face which allegedly show the existence of this condition. The service treatment records (STRs) are negative for report of, treatment for, or diagnosis of leukoderma/vitiligo. Post service records show a diagnosis of this condition upon VA examination in October 2013. It was the examiner’s opinion that this disorder was of unknown etiology as it was idiopathic. It was less likely than not related to any specific exposure event experienced by the Veteran during her military service, to include her service in SWA. For rationale, it was noted that current medical literature review did not correlate leukoderma with Gulf War exposure. Based on the facts of record, the claim of service connection for leukoderma, to include a skin disorder of the face and hands, is denied. Other than those skin conditions for which service connection is already in effect, no chronic skin disorder of leukoderma was noted during service, and, as indicated above, it was not diagnosed until many, many years after service. Moreover, a VA examiner has expressly found that this condition did not result from any exposure event during service, to include service in the SWA. The rationale pointed to medical literature which did not support the claim. As to the Veteran’s claim regarding the onset of her leukoderma, to the extent that she is asserting either that she has this disorder or is attributing such to service, she is providing lay diagnosis and a nexus opinion. In this regard, the Board recognizes that it is contrary to the law to categorically reject non-expert diagnoses or nexus/causation opinions, based solely on the fact that the person offering the opinion is not an expert. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Whether non-expert (lay) diagnoses or nexus opinions are competent evidence depends on the on the question at issue and the particular facts of the case. In Jandreau, the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated as follows: “[l]ay 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, supra. The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n. 4. In Davidson, the Federal Circuit drew from Jandreau to explain its holding that non-expert nexus opinion evidence may not be categorically rejected. Also of note is that the United States Court of Appeals for Veterans Claims (Court) has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion or diagnosis could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. There is no indication that the Veteran possesses the requisite medical knowledge regarding the etiology of her leukoderma. Therefore, the Board finds the Veteran’s statements as to the onset and etiology of this condition no probative weight. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, No. 01- 7006 (Fed. Cir. December 17, 2001). Service Connection for Jaundice Due to Medications The evidence shows that the Veteran was prescribed diclofenac for her service-connected knee disorders. She claims that this medication caused her to develop jaundice. Review of the record does show that she took this medication for her knee complaints, and, in fact, did develop jaundice. These facts are corroborated in private medical records from 2012. These records also reflect that she stopped this medication and her jaundice resolved. Subsequently dated records only note that she has an allergy to this medication. No chronic residuals of having jaundice in 2012 are demonstrated. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131 (2012); and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C. § 1131 (2012), as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. As there is no competent medical evidence of current residuals of jaundice, the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert and Ortiz, supra. REASONS FOR REMAND The claims of entitlement to service connection for bilateral hip and bilateral leg disorders are remanded, as is the claim for an effective date earlier than September 13, 2012, for the grant of service connection for IBS. Initially, as to the claims of service connection for bilateral hip and leg disorders, the Veteran’s representative has claimed that additional medical examination is warranted. No examiner has address the medical question as to whether the Veteran’s service-connected knee disorders have caused or aggravated disorders in the hips or legs, to include multi-joint arthritis which is currently reported. This aspect of the claim was not addressed at the time of previous examination in 2013. As such, the Board finds that a remand is necessary so that the Veteran may be scheduled for a VA examination to assess the etiology of bilateral hip and leg disorders. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As to the issue of entitlement to effective date earlier than September 13, 2012, for the grant of service connection, it is noted that the Veteran now claims that there was clear and unmistakable error (CUE) in the initial denial of her claim in September 2004 (when her claim for severe constipation) was denied. The September 2004 decision is final. See, e.g., the Veteran’s October 2009 statement. The Regional Office (RO) has not yet adjudicated the CUE issue. The Board thus finds that the Veteran’s claim for an effective date earlier than September 13, 2012, for the grant of service connection for IBS and her claim with regards to CUE in the September 2004 rating decision are inextricably intertwined, as the outcome of the CUE issue could affect the outcome of the Veteran’s earlier effective date claim. Therefore, the earlier effective date claim must be held in abeyance and remanded to the Agency of Original Jurisdiction (AOJ) to be addressed after initial adjudication of the CUE claim. The matters are REMANDED for the following action: 1. Obtain any missing VA treatment notes and associate them with the claims file. Moreover, invite the Veteran to identify any additional medical providers who treated her for her bilateral hip or bilateral leg conditions. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 2. Schedule the Veteran for a VA orthopedic examination to assess the etiology of conditions of the bilateral hips and legs. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. 3. After review, for any disorders found to exist in the hips and legs, the examiner must opine as to whether such is at least as likely as not (50 percent probability or more) aggravated by her service-connected bilateral knee osteoarthritis with instability. 4. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 5. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. 6. A complete rationale must be provided for any opinion offered. The examiner is advised that the rationale must be pertinent to this specific Veteran, his symptoms, medical history, and circumstances, and must not rely solely on generalizations regarding the development of disability in multiple joints. 7. Then, after reviewing the examination reports for compliance with this order, undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending service connection claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case (SSOC) and be afforded the opportunity to respond before the record is returned to the Board for further review. 8. Moreover, the AOJ should adjudicate that the issue of whether CUE exists in a September 2004 rating decision that denied entitlement to service connection for a gastrointestinal (GI) disorder, classified as severe constipation, which is now claimed as IBS. If CUE is denied, the Veteran and her representative should be informed of her appellate rights and given the opportunity to appeal. This CUE claim should only be returned to the Board if the Veteran perfects a timely appeal of a denial of this issue. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith