Citation Nr: 18158766 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-00 665A DATE: December 18, 2018 ORDER Service connection for a low back condition is denied. Service connection for a right hip condition is denied. REMANDED Entitlement to a compensable rating for pseudofolliculitis barbae (PFB) is remanded. Service connection for a right lower leg condition is remanded. Service connection for a right foot condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a low back condition due to a disease or injury in service. 2. The preponderance of the evidence is against finding that a right hip 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 a low back condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for a right hip condition have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1986 to November 1986 and from November 1990 to April 1991. The Board of Veterans’ Appeals (Board) notes that in February 2017 the Veteran stated that he would not be able to attend his scheduled Board hearing and that he wanted to reschedule his Board hearing for a later time. He was scheduled for a Travel Board hearing on November 26, 2018. In November 2018, the Veteran withdrew his hearing request and requested that his claims be forwarded to the Board. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (e). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.§§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Arthritis is a qualifying chronic disease and as such may be service-connected solely on the basis of evidence of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a low back disorder. The Veteran contends that his low back disorder is related to his active duty service. The questions for the Board are whether the Veteran has a current low back disability that began during service, whether arthritis of the low back was manifest within one year of service, or whether a low back disorder is otherwise at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of degenerative joint disease and chronic discopathy of the lumbar spine complicated by spinal stenosis, and evidence shows that the Veteran reported low back pain during his service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of degenerative joint disease and chronic discopathy of the lumbar spine complicated by spinal stenosis began during service, that arthritis was manifest within one year of service discharge, or that it is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d), 3.307, 3.309. The record contains conflicting medical opinions regarding whether the Veteran’s low back condition is at least as likely as not related to an in-service injury, event, or disease. The May 2014 VA examiner opined that it was not. The rationale was the Veteran’s March 1991 separation examination found no recurrent back pain during the examination of the spine and the Veteran had normal neurological and lower extremity examinations. Though the Veteran complained of low back pain in 1986, his examination was consistent with a muscle strain. A strain is acute and transitory and resolves without residuals. Available medical records within two years of discharge were silent for a low back condition. The VA examiner found that the Veteran’s muscle strain was not related to his current low back condition; however, an intercurrent injury was unknown. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In March 2017, private practitioner P.Y. opined that the Veteran’s low back disability is related to the Veteran’s military service. The rationale was that the Veteran was seen on multiple occasions by military medical personnel for chronic low back pain. This opinion is, however, less probative than the VA examiner’s opinion. There is no indication that P.Y. reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based on the Veteran’s self-reported medical history, which is inconsistent with the Veteran’s service treatment records that show the Veteran was treated for a one day history of low back pain in July 1986 (diagnosed as myalgia) and that he did not report any back pain during his July 1990 periodic examination, July 1990 Medical History Report, or his March 1991 Medical History Report and in fact, denied recurrent back pain; therefore, showing as the VA examiner suggested that the Veteran’s in-service back pain was an isolated occurrence and not a chronic injury. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Consequently, the Board gives more probative weight to the May 2014 VA examiner’s opinion. While the Veteran believes his current low back pain disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the May 2014 VA examiner. 2. Entitlement to service connection for a right hip condition. The Veteran contends that he had a right hip condition since his active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of right sciatic radicular pain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The service treatment records (STRs) do not reflect any complaints, findings, treatment, or diagnosis of a right hip disease or injury. During the March 1991 discharge examination and July 1990 periodic examination, the Veteran had normal musculoskeletal and lower extremity findings. Also, the examinations included Reports of Medical History in which the Veteran denied having swollen or painful joints, no bone joint or other deformities, and no leg cramps. Further, the Veteran’s complete service treatment records in this case, which were generated contemporaneous to service, are likely to accurately reflect the Veteran’s physical condition, so are of significant probative value, especially because the Veteran was treated on other occasions for other disorders such as low back pain and pseudofolliculitis barbae, though he did not report any such problems or symptoms regarding the right hip. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). While the Veteran has recently, as part of the current claim for compensation, advanced having a right hip condition since service in consideration of other evidence included in the service treatment records, it is likely that any right hip injury or disorder or symptoms would have been mentioned and/or detected during service. The Veteran specifically denied current problems or any history of a musculoskeletal injury at the time of the March 1991 and July 1990 examinations and medical histories. As such, the complete service treatment records in this case, which were generated contemporaneous to service, are likely to accurately reflect the Veteran’s physical condition, so are of significant probative value, especially because the Veteran was treated for other disorders and likely would have reflected any complaints or treatment for a right hip condition had such occurred during service. Id. While the Veteran believes his right hip condition occurred during active service, and he is competent to report experiencing symptoms of a right hip condition during and since service, the Board finds that the Veteran’s recent statements made in connection with his current claim years later asserting symptoms of a right hip condition during service are inconsistent with, and outweighed by, other more contemporaneous lay and medical evidence of record, so are not credible. See Curry v. Brown, 7 Vet. App. 59 (1994). Thus, on review of all the evidence, lay and medical, the Board finds the weight of the evidence demonstrates there was no in-service right hip injury or disease, and service connection is not established for a right hip condition. The appeal therefore, must be denied. REASON FOR REMAND 3. Entitlement to a compensable rating for PFB is remanded. In a July 2014 statement, the Veteran asserted that his PFB symptoms increased in severity since the Veteran was last examined by VA in May 2014. Although the Veteran underwent a private examination for his PFB in March 2017, the physician noted historical findings and not the Veteran’s present severity. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her hypertension. 4. Entitlement to service connection for a right lower leg condition. The Board cannot make a fully-informed decision on the issue of service conection for a right lower leg condition because no VA examiner has opined whether his he has a right lower leg condition that is related to his mild scaly lesions of his bilateral lower legs during his active duty service. 5. Entitlement to service connection for a right foot condition. The Board cannot make a fully-informed decision on the issue of service connection for a right foot condition because no VA examiner has opined whether his current diagnosis of right foot pain is related to his bilateral foot rash during his active duty service. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and extent of his service-connected pseudofolliculitis barbae. The examiner should review the record prior to examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s PFB alone and discuss the effect of the Veteran’s skin disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right lower leg condition. The examiner should review the record prior to examination. The examiner should provide an opinion as to the following question: The examiner must opine whether the Veteran has a right lower leg condition (or other disability) that is at least as likely as not related to an in-service injury, event, or disease, including a complaint of a heat rash in July 1986 during service. A complete rationale is required for all opinions. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right foot condition. The examiner should review the record prior to examination. The examiner should provide an opinion as to the following question: The examiner must opine whether the Veteran has a right foot condition (or other disability) that is at least as likely as not related to an in-service injury, event, or disease, including a complaint of a foot rash in July 1986 during service. A complete rationale is required for all opinions. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel