Citation Nr: 18155344 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-39 596 DATE: December 4, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for residuals of a head injury, previously characterized as headaches, is reopened; the appeal is granted to this extent only. Service connection for a bilateral knee disorder is denied. Service connection for a bilateral shoulder disorder is denied. Service connection for a right hand disorder is denied. Service connection for a back disorder is denied. Service connection for residuals of a flesh wound of the right leg is denied. REMANDED Entitlement to service connection for residuals of a head injury, to include headaches, is remanded. Entitlement to service connection for a skin disorder, claimed as jungle rot, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. In October 1971, the Veteran was notified that his claim of entitlement to service connection for headaches was denied due to his failure to report for his scheduled VA examination without adequate reason; he did not respond within 1 year and, as such, the claim is deemed abandoned. 2. Evidence added to the record since the final October 1971 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for residuals of a head injury, to include headaches. 3. A bilateral knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. 4. A bilateral shoulder disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. 5. A right hand disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. 6. A back disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. 7. At no time during the pendency of the claim does the Veteran have a current disability of residuals from a flesh wound of the right leg, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSIONS OF LAW 1. The October 1971 decision that denied service connection for residuals of a head injury, previously characterized as headaches, is final. 38 U.S.C. § 4005 (c) (1970) [38 U.S.C. § 7105 (c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1971) [38 C.F.R. §§ 3.104, 3.156, 3.158, 20.302, 20.1103 (2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of head injury, to include headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156, 3.158. 3. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a bilateral shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a right hand disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for residuals of a flesh would of the right leg have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, he waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the October 2015 statement of the case. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider the entirety of the evidence of record. With regard to the characterization of the Veteran’s claims for service connection for a back disorder, a skin disorder, claimed as jungle rot, and a bilateral shoulder disorder, previously characterized as a right arm disorder, the Board observes that such claims were previously denied in a June 2008 rating decision. However, in August 2008, the Veteran submitted a statement requesting to reconsider and/or reopen such claims along with a buddy statement from J.M. describing the Veteran’s reported injuries during service. Consequently, as new and material evidence was received within one year of the issuance of the June 2008 rating decision, the Board will review such claims on a de novo basis. 38 C.F.R. § 3.156(b). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for residuals of head injury, previously characterized as headaches. Pursuant to 38 C.F.R. § 3.158(b), where the veteran fails without adequate reason to respond to an order to report for a VA examination within 1 year from the date of request and payments have been discontinued, the claim for such benefits will be considered abandoned. By way of background, in May 1971, the Veteran filed a claim for service connection for headaches. The AOJ received his service treatment records in July 1971 and, thereafter, he was scheduled for a VA examination to determine the nature and etiology of such claimed disorder in August 1971. However, he failed to attend and did not provide an adequate reason for doing so. Thus, in October 1971, he was informed that his claim for service connection for headaches had been denied and that no further action would be taken regarding his claim unless he informed the AOJ of his willingness to report for an examination. However, the Veteran did not respond to the October 1971 letter within 1 year from the date of request; thus, the Board finds that he abandoned his 1971 claim for service connection for headaches. Therefore, the October 1971 rating decision is final. 38 U.S.C. § 4005 (c) (1970) [38 U.S.C. § 7105 (c) (2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1971) [38 C.F.R. §§ 3.104, 3.156, 3.158, 20.302, 20.1103 (2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the final October 1971 decision includes the Veteran’s statements regarding the nature and onset of his head injury, to include his headaches. Specifically, he has reported that, while his service treatment records reflect a report of headaches since age 12, such were related to his sinuses. He further reported that he was hit in the head by a tree limb while he was clearing to fire, which resulted in a loss of consciousness and subsequent headaches, during service. Also received since the prior final denial are post-service treatment records and a February 2010 VA examination report reflect a current diagnosis of a headache disorder. Further, in light of such, the AOJ obtained an addendum opinion in June 2010 regarding the nature and etiology of the Veteran’s headache disorder. See Shade, supra. Consequently, as the newly received evidence addresses the potential etiology of the Veteran’s claimed residuals of a head injury, to include headaches, the Board finds that the newly received evidence is not cumulative or redundant of the evidence of record at the time of the October 1971 decision and raises a reasonable possibility of substantiating such claim. Accordingly, the Board finds that new and material evidence has been received and the Veteran’s claim for service connection for residuals of a head injury, to include headaches, is reopened. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for a bilateral shoulder disorder. 4. Entitlement to service connection for a right hand disorder. 5. Entitlement to service connection for a back disorder. 6. Entitlement to service connection for residuals of a flesh wound of the right leg. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). 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. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). 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 arthritis, 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, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. The record reflects that the Veteran is in receipt of the Combat Infantryman Badge. As such, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The combat presumption, however, does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service disorders. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). 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 (1990). The Veteran contends that he has a bilateral knee disorder, a bilateral shoulder disorder, a right hand disorder, a back disorder, and a flesh wound of the right leg that is directly related to his military service. Specifically, he alleges that he sustained such injuries while serving in Vietnam as a result of jumping off an armored personnel carrier and/or rappelling from a rope into a landing zone. In this regard, in an August 2008 letter, J.M. stated that he assisted the Veteran with his various injuries during service, to include damage to his knees, shoulders, and back from jumping from on top of a mortar track. The Veteran’s service treatment records (STRs) indicate that he complained of back pain after a fall, pain in his legs, and mild pain in his right hand. See May 1969 and June 1969 STRs. Furthermore, the aforementioned reported injuries are consistent with the Veteran’s combat service in Vietnam. However, his November 1970 separation examination revealed that he had a normal clinical evaluation for his upper and lower extremities, skin, and spine and other musculoskeletal systems. Post-service treatment records, to include a February 2010 VA examination, reflect current diagnoses of arthritis of the bilateral knees, bilateral shoulders, right hand, and back. See March 2013, December 2014, April 2016, and August 2016 VA treatment records. Furthermore, as noted by the February 2010 VA examiner, the Veteran underwent back surgery in 1980’s when he bent over, sneezed, and blew a disc out, and was post-laminotomy and discectomy. As the claims file was not provided to the VA examiner in February 2010, an addendum opinion was obtained in May 2010. At such time, the examiner opined that the Veteran’s back disorder, bilateral knee disorder, bilateral shoulder disorder, and right hand disorder were less likely as not associated with his military service. In support thereof, he explained that such injuries during service appeared to be minor sprains, strains, and/or bruises that resolved with no residuals. The examiner also noted that the Veteran’s current orthopedic complaints were more likely than not age acquired as well as due to his job in construction and carpentry for many years. Thus, he concluded that there was no evidence of a chronic ongoing condition related to the Veteran’s military service in regard to any of his orthopedic conditions. The Board places great weight on the May 2010 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran and J.M., and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. The Board also acknowledges that the Veteran believes his current bilateral knee, bilateral shoulder, right hand, and back disorders are related to his military service. However, while lay persons are competent to provide opinions on some medical issues, in this case, the cause of such disorders falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons are not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, such matter involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, the etiology of arthritis, which involves the degeneration of a joint, is an internal process, and specialized knowledge is necessary to determine whether a specific injury led to such disorder. Moreover, whether the symptoms the Veteran reportedly experienced during or after service are in any way related to his currently diagnosed bilateral knee, bilateral shoulder, right hand, and back disorders is a matter that also requires medical expertise to determine. See Clyburn, supra. (“although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Accordingly, the Veteran’s opinion as to the onset and etiology of such disorders is not competent evidence and, consequently, is afforded no probative weight. Moreover, the evidence of record fails to demonstrate that arthritis of the bilateral knee, bilateral shoulder, right hand, and back manifested within one year of the Veteran’s separation from service. In this regard, his November 1970 separation examination revealed that his upper and lower extremities were normal upon clinical evaluation. Additionally, while the Veteran has reported a continuity of the bilateral knee, bilateral shoulder, right hand, and back symptomatology since service, no medical professional has related such complaints to a diagnosis of arthritis in the first post-service year. Consequently, presumptive service connection, to include on the basis of a continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Therefore, the Board finds that the Veteran’s bilateral knee, bilateral shoulder, right hand, and back disorders are not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of discharge from active duty. Consequently, service connection for such disorders are not warranted. Furthermore, the Board finds that service connection for residuals of a flesh wound of the right leg is not warranted as the Veteran does not have a current disability during the pendency of his claim, and the record does not contain a recent diagnosis of disability prior to his filing of a claim. See McClain, supra; Romanowsky, supra. In this regard, the Board notes that an examination and/or opinion has not been obtained in regard to such claim; however, as there is no competent evidence of a current disability or persistent or recurrent symptoms of a disability, VA’s duty to provide an examination and/or opinion is not triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, while the Veteran reported that his flesh wound of the right leg resulted from his combat service in Vietnam, the evidence of record, to include the Veteran’s own statements, does not reflect that he has any residuals as a result of such injury. Specifically, at his June 2018 Board hearing, he denied having any residuals from a flesh wound of the right leg. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Brammer, supra. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims for service connection for disorders of the bilateral knee, bilateral shoulder, right hand, and back, and residuals of a flesh wound of the right leg. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 7. Entitlement to service connection for residuals of a head injury, to include headaches. The Veteran contends that he has residuals, to include headaches, from a head injury he incurred during his combat service in Vietnam. Specifically, at the June 2018 Board hearing, he stated that he hit his head on a tree limb when he was clearing to fire. In this regard, the Board notes that the Veteran’s STRs indicate that he was seen on several occasions for complaints of headaches during service. See May 1969, March 1970, April 1970, May 1970, August 1970, and September 1970 STRs. However, in his February 1969 Report of Medical History, completed coincident to his induction, the Veteran reported that he had frequent or severe headaches, as well as sinusitis, since he was 12, thereby indicating that he may have had a pre-existing headache disorder. In February 2010, the Veteran was afforded a VA examination at which time, an impression of posttraumatic headaches, vascular in nature, was rendered and, in a June 2010 addendum opinion, the examiner concluded that such diagnosis was based on the Veteran’s history as no evidence could be obtained in his claims file to that effect. In this regard, the examiner noted that he was unable to locate any STRs pertaining to the evaluation or management of a head injury or headaches. However, as noted above, the Veteran was seen on numerous occasions for the treatment of headaches and has reported a head injury during combat. Thus, the Board finds that a remand is necessary to obtain an addendum opinion to determine the nature and etiology of the Veteran’s currently diagnosed headache disorder. 8. Entitlement to service connection for a skin disorder, claimed as jungle rot, to include as due to exposure to herbicide agents. The Veteran contends that his currently diagnosed skin disorder, identified as eczema, onychomycosis of the toenails, tinea pedis, and keratoderma at a February 2010 VA examination, is directly related to his military service. Specifically, he reports that such is due to the conditions in Vietnam and/or exposure to herbicide agents while there. Further, in the aforementioned August 2008 letter, J.M. stated that the Veteran was treated for a skin rash from his feet to shoulders and a skin fungal infection (jungle rot) on both of hands, lower legs, and feet during military service. While the February 2010 VA examiner noted the Veteran’s currently diagnosed skin disorders, she did not offer an opinion as to the etiology of such as the claims file was not provided to her. Consequently, an addendum opinion was obtained in May 2010, at which time the examiner found that none of the Veteran’s diagnosed skin disorders were caused by or a result of his military service or attributable to his combat service as there was no record of a fungal infection and its treatment in service. However, it does not appear that she considered the Veteran’s or J.M.’s report of treatment for skin symptoms during service, or whether such skin disorders are otherwise related to the conditions in Vietnam and/or exposure to herbicide agents while there. Therefore, the Board finds that a remand is warranted to obtain an addendum opinion that addresses such concerns. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who provided the June 2010 opinion regarding the etiology of the Veteran’s headache disorder. The record and a copy of this Remand must be made available to the examiner. If the June 2010 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) For the Veteran’s headache disorder, currently diagnosed as posttraumatic headaches, the examiner should indicate whether there is clear and unmistakable evidence that such disorder pre-existed service. In this regard he or she should consider the Veteran’s report at his February 1968 induction examination that he had headaches and sinusitis since age 12. (i) If there is clear and unmistakable evidence that the disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service. If there was an increase in the severity of the Veteran’s disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that the current disorder pre-existed service, then the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s active duty service, to include his documented in-service treatment for headaches and/or as due to hitting his head on a tree limb when he was clearing to fire during combat in Vietnam. In offering such opinions, the examiner must consider and discuss the lay statements of record regarding the onset of the Veteran’s headache disorder and the continuity of symptomatology of such disorder. The examiner must also consider and discuss the STRs indicating that the Veteran had a headache disorder during his military service. A rationale for any opinion offered should be provided. 2. Return the record to the VA examiner who provided the May 2010 opinion addressing the etiology of the Veteran’s skin disorder. The record and a copy of this Remand must be made available to the examiner. If the May 2010 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiry: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s skin disorder, currently diagnosed as eczema, onychomycosis of the toenail, tinea pedis, and keratoderma, had its onset in, or is otherwise related to the Veteran’s military service, to include the conditions in Vietnam and/or exposure to herbicide agents while there. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s STRs are silent as to a skin disorder or a lack of medical records demonstrating a continuity of care. In offering such opinion, the examiner must consider and discuss the lay statements of record from the Veteran and J.M. regarding the in-service onset and treatment of the Veteran’s skin disorder and the continuity of symptomatology of such disorder. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel