Citation Nr: 18161126 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-18 432 DATE: December 28, 2018 ORDER Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for a left shoulder condition is denied. Entitlement to service connection for the residuals of a right ankle fracture is denied. Entitlement to service connection for emphysema is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for a skin disorder is denied. FINDINGS OF FACT 1. The evidence of record is against finding that the Veteran’s right shoulder condition is related to an in-service injury, event, or disease. 2. The evidence of record is against finding that the Veteran’s left shoulder condition is related to an in-service injury, event, or disease. 3. The evidence of record is against finding that the Veteran’s residuals of a right ankle fracture are related to an in-service injury, event, or disease. 4. The evidence of record is against finding that the Veteran’s emphysema is related to an in-service injury, event, or disease. 5. The evidence of record is against finding that the Veteran’s COPD is related to an in-service injury, event, or disease. 6. The evidence of record is against finding that the Veteran’s skin disorder is related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder condition are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left shoulder condition are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for the residuals of a right ankle fracture are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for emphysema are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for a skin disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1978 to December 1982, to include service at Camp Lejeune, North Carolina, between April 1982 and May 1982. This case is on appeal before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In 2015, the Board remanded these claims for further development. The RO complied with the Remand instructions. As discussed in more detail below, the Veteran failed to provide the required information about his alleged exposure to asbestos during service, and, without any evidence of in-service disease or injury, there is no requirement to provide him an examination. All other examinations were performed. The Veteran was previously represented by an attorney, but he withdrew that representation in 2016. The Veteran was notified by the RO of this withdrawal, and has not appointed a new representative. The Veteran has not raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks service connection for a right shoulder condition, a left shoulder condition, residuals of right ankle fracture, emphysema, COPD, and a skin disorder, all of which he alleges are related to active service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). During the pendency of this appeal, effective March 14, 2017, the VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases that are associated with contaminants that were present in the water supply at Camp Lejeune. 82 Fed. Reg. 4184-4185 (Jan. 13, 2017) (codified at 38 C.F.R. §§ 3.307, 3.309). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a claimant must show the following: (1) that the veteran served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that the veteran suffered from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). None of the Veteran’s claimed conditions are on the presumptive list, and, as discussed in more detail below, there is no competent evidence any condition is related to those Camp Lejeune exposures. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). I. Bilateral Shoulder Conditions The Veteran seeks service connection for conditions of the right and left shoulders. Given the existence of current impairments in both shoulders, these will be discussed together. The Veteran alleges that he developed orthopedic injuries to both shoulders in the course of his military duties, which required a great deal of heavy lifting. See September 2018 VA examination. The Veteran’s service treatment records confirm that he injured his left shoulder and bicep during a martial arts accident in February 1981. However, there is no indication that this resulted in an orthopedic injury; rather, the Veteran suffered from multiple lacerations, which were described as superficial. There is no record of follow-up, and the Veteran’s November 1982 separation examination does not reference any ongoing orthopedic shoulder conditions. Indeed, there are no further indications of a shoulder impairment until decades later. In April 2005, the Veteran sought treatment for right shoulder pain, asserting that he injured it lifting steel plumbing pipes two years prior. Although the attending physician noted bodily asymmetry, with the Veteran’s right shoulder being visibly lower than his left, an X-ray taken during that appointment was normal. Another X-ray of the Veteran’s right shoulder taken in August 2005 showed only minimal arthritic changes to the acromioclavicular joint. In December 2005, the Veteran reported that he was involved in an accident where a 400 pound cable fell on his right shoulder. He indicated that he was treated in the emergency room but provided no date for this incident. The Veteran also claimed that he was stabbed in the right shoulder during his time in the military. A VA treatment record from October 2011 states that the Veteran exhibited decreased range of motion in both shoulders, with his right being worse than his left. Joint popping was also noted. In April 2015, an MRI of the Veteran’s right shoulder revealed moderate rotator cuff arthropathy, full-thickness tears of the supraspinatus and infraspinatus tendons with significant retraction, mild subscapularis tendinopathy, and mild osteoarthritis in the acromioclavicular joint. In August 2015, the Veteran sought treatment for left shoulder pain after he fell down a set of stairs while sleepwalking. The Veteran reported that he fell on his left shoulder, possibly dislocating it. However, he indicated that his left shoulder pain began several months prior. September 2015 X-rays revealed arthritis in the acromioclavicular and glenohumeral joints in each of the Veteran’s shoulders. By March 2016, the Veteran exhibited limited range of motion in both shoulders, and was receiving corticosteroid injections to relieve the plain. The Veteran underwent a VA examination in September 2018. The examiner conducted an in-person evaluation and reviewed the claims file, noting the Veteran’s left shoulder injury in February 1981 as well as diagnoses of arthritis and rotator cuff tears in the bilateral shoulders. The Veteran repeated his earlier claims of injuring both shoulders in service, asserting that he has experienced pain since separation. However, the examiner noted that the Veteran was not diagnosed with a shoulder condition until 2005. Upon examination, range of motion was normal in both shoulders. There was also no evidence of muscle atrophy, ankylosis, or joint instability, though the Veteran indicated that he used a brace occasionally. Based on the lack of medical evidence showing a link between the Veteran’s in-service injuries and his bilateral shoulder conditions, the examiner found that his current impairments were less likely than not related to service. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s bilateral shoulder conditions are related to service. The Board notes that the opinion provided by the VA examiner in September 2018 is the only statement from a medical professional addressing the etiology of the Veteran’s bilateral shoulder conditions. The VA examiner had the benefit of examining the Veteran and the claims file, and provided a clear basis for her medical opinion. The VA examiner also had the opportunity to review the Veteran’s VA medical records associated with the claims file, and found no relationship between his current bilateral shoulder conditions and his injuries in service. The Board thus affords the greatest probative weight to the opinion of the September 2018 VA examiner, and the Board finds that the evidence weighs against any suggestion the Veteran has had a chronic disorder affecting either shoulder ever since service. The Board acknowledges the statements of the Veteran, which attribute his bilateral shoulder conditions to events he experienced in service. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in September 2018 is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training the Veteran is not shown to have. As such, her opinion warrants more weight. In conclusion, the Board finds that the preponderance of the evidence shows that the Veteran does not have a shoulder disorder related to service, nor has he had symptoms affecting either shoulder ever since service. Although the Board acknowledges the Veteran’s assertions to the contrary, the majority of the evidence is inconsistent with his statements. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claims for service connection for conditions affecting his right and left shoulders are denied. II. Residuals of a Right Ankle Fracture The Veteran seeks service connection for the residuals of a right ankle fracture; according to the Veteran’s account, he jumped from the back of a truck in service, injuring his right ankle. He alleges that it had to be placed in a cast for three months, but never healed properly. The Veteran claims that the joint has caused pain and swelling ever since. See September 2018 VA examination. The Veteran’s service treatment records confirm that he suffered a sprain to his right ankle in March 1980. The handwriting on this record is hard to read. It is clear “crutches” were part of the treatment plan, but the prior Board decision also interpreted this record as showing use of a short leg cast or brace for two weeks. However, there is no indication of follow-up, nor any indication it was anything other than a sprain. Additionally, his November 1982 separation examination does not mention any ongoing right ankle condition. There are no further references to a right ankle condition until decades later. In June 2005, the Veteran sought treatment for right ankle pain. He related a history of an old fracture from his time in the military, and claimed to experience residual pain on the anterior side. Although the attending physician ordered a brace, an X-ray taken during the appointment found no significant osseous, articular, or soft tissue abnormalities. In July 2005, the Veteran exhibited full range of motion in his right ankle. The Veteran’s wife submitted a statement in March 2009, in which she affirmed that he broke his ankle in 1980. She indicates that he came home with his foot in bandages, and later wore a cast. Since that time, the Veteran’s wife claimed that he has had trouble with pain and swelling in that joint. In March 2018, the Veteran was assessed for a wheelchair. The treatment record stated that he suffered from arthritis in multiple joints, which made ambulation difficult. In particular, the Veteran complained of pain in his shoulders, knees, and ankles, which he described as continuous and sharp. The Veteran was afforded a VA examination in September 2018. The examiner conducted an in-person evaluation and reviewed the claims file, noting the March 1980 right ankle sprain as well as a later, post-service diagnosis of arthritis. The Veteran repeated his earlier claims of breaking his right ankle in service, which required it to be a cast for three months. He went on to say that the joint never healed correctly, and has caused pain and swelling ever since. Upon examination, range of motion was normal, with evidence of pain with weightbearing. Although there was no evidence of ankylosis, joint instability, or muscle atrophy, the Veteran was noted to regularly use a walker, and occasionally use a wheelchair and a cane. However, the examiner found it less likely than not that the Veteran’s current right ankle condition was related to service. This is because there was no medical evidence to suggest that the March 1980 right ankle sprain resulted in a chronic disability or caused his current degenerative joint disease. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s claimed residuals of a right ankle fracture are related to service. The Board notes that the opinion provided by the VA examiner in September 2018 is the only statement from a medical professional addressing the etiology of the Veteran’s right ankle impairment. The VA examiner had the benefit of examining the Veteran and the claims file, and provided a clear basis for her medical opinion. The VA examiner also had the opportunity to review the Veteran’s VA medical records associated with the claims file, and found nothing to corroborate the Veteran’s claim that he broke or fractured his right ankle in service. Indeed, the evidence shows that he only sprained his ankle, and the VA examiner found no relationship between this incident and the Veteran’s current right ankle condition. In other words, even accepting that an injury occurred – a sprain – and that the Veteran used crutches and/or a cast or bandages following this injury, there is no medical evidence that there was a fracture during service and there is no support for the proposition a sprain during service led to the current condition decades later. The Board thus affords the greatest probative weight to the opinion of the September 2018 VA examiner. The Board acknowledges the statements of the Veteran and his wife, which attribute his right ankle impairment to events he experienced in service. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in September 2018 is more probative than the lay assertions from the Veteran and his wife. The VA examiner has expertise, education, and training that neither the Veteran nor his wife is shown to have. As such, that opinion warrants more weight. In conclusion, the Board finds that the preponderance of the evidence shows that the Veteran does not have a right ankle condition due to service. Although the Board acknowledges the Veteran’s assertions to the contrary, the majority of the evidence is inconsistent with his statements. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claim for service connection for residuals of a right ankle fracture is denied. III. Pulmonary Disorders The Veteran seeks service connection for emphysema and COPD, alleging that these conditions are related to service. See April 2015 Form 9. Because both of these impairments affect the Veteran’s pulmonary system, they will be addressed together. The Veteran’s service treatment records are entirely devoid of reports of trouble breathing, or other symptoms that could be attributable to either emphysema or COPD or any other pulmonary conditions. He was treated on one occasion for an upper respiratory infection, but that apparently was an acute incident, as there were no further relevant complaints. Testing conducted in June 2011 revealed the Veteran’s respiratory functioning was within the normal range. As late as November 2011, the Veteran denied chest pain and breathing problems. The first indication of a pulmonary disorder does not appear until February 2012, when the Veteran presented with complaints of becoming winded after climbing two flights of stairs. Soon after, he was diagnosed with both emphysema and COPD. Although the Veteran claimed to have stopped smoking in 2009, a progress note from January 2013 confirms that he continued to smoked one pack of cigarettes per day. By July 2014, the Veteran was using a nebulizer to control his wheezing and shortness of breath. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that either the Veteran’s emphysema or COPD are related his military service. The evidence of record contains no indication of a pulmonary disorder manifesting during service or within one year of separation. Additionally, no medical professional has issued an opinion linking the Veteran’s emphysema or COPD to service. Rather, the only evidence establishing a connection between the Veteran’s current disabilities and his military service are lay statements from the Veteran himself. However, the Board notes that, although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding the etiology of disease processes that cannot be observed. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). The Veteran did not allege he experienced any chronic respiratory symptoms during service. He did state to a VA medical provider in March 2011 that he was exposed to asbestos during service. However, there was no additional information provided, so the Board remanded this claim to ask the Veteran for further details about such exposures. He was sent a detailed letter in August 2018 asking for information as to how and when he was exposed to asbestos during service. He did not reply. Not only is there a lack of any specificity from him about his alleged asbestos exposure, but there is also nothing in the medical evidence suggesting either emphysema or COPD is due to prior asbestos exposure or that there have been any findings on diagnostic tests indicating such past exposure. Given the absence of an in-service incident, as well as the lack of competent medical opinion evidence linking his current condition to service, the Board finds that the Veteran has not substantiated his claim for service connection for either emphysema or COPD. Hickson v. West, 12 Vet. App. at 253. Moreover, because there is no indication that the Veteran’s emphysema or COPD may be related to an in-service injury, event, or disease, the Board concludes that a VA examination or opinion is not warranted for this issue. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Therefore, the Board finds the evidence of record does not show that the Veteran’s emphysema or COPD are related to service. Although the Board acknowledges the Veteran’s statements to the contrary, there is no competent medical evidence in the claims file to corroborate his assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claims for service connection for emphysema and COPD are denied. IV. Skin Disorder The Veteran seeks service connection for a skin disorder, which he alleges is related to contaminants in the water supply at Camp Lejeune. See March 2015 Statement of the Case. Given that the Veteran had qualifying service at Camp Lejeune, the VA concedes that he was exposed to contaminants present in its water supply. However, the Board notes that there are no skin disorders included in the list of diseases entitled to presumptive service connection under 38 C.F.R. § 3.309(f). Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran is not precluded from establishing service connection where entitlement on a presumptive basis is not warranted, as long as there is proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran’s service treatment records show that he sought treatment for a rash on the back of his neck in May 1981. He claimed that it appeared two weeks prior, and the attending physician subsequently removed a fungal growth. The Board notes that this incident occurred approximately 11 months before the Veteran was assigned to Camp Lejeune. Moreover, his November 1982 separation examination does not reference any chronic skin disorder. It was noted he had a nevus on his chest which had existed since birth. The record does not indicate the presence of any type of skin disorder until decades later. In July 2005, the Veteran had a skin tag removed from the left side of his neck and a pigmented lesion excised from his chest. During an appointment in December 2005, the Veteran reported that he experienced a skin rash “all the time.” However, upon examination, the attending physician noted that no lesions were present. From February 2009 onward, the record contains repeated references to dry skin. However, dermatological evaluations were mostly normal through June 2017. In September 2018, the Veteran was afforded a VA examination. The examiner conducted an in-person evaluation and reviewed the claims file, noting a prior diagnosis of xerosis (dry skin). The Veteran reported having something resembling hives that appeared all over his body, that then turned red and began to itch. He claimed to have had this condition since his time in the military, but admitted that he did not seek treatment until 2005. The Veteran asserted that he experienced itching daily, and stated that if he did not take his medication and use the moisturizing cream, he would scratch until he drew blood. However, upon examination, there were no rashes or lesions present. Based on the lack of evidence showing a chronic skin condition during active service that was still present, the examiner found it less likely than not that the Veteran’s current dry skin resulted from contaminants in the water at Camp Lejeune. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a current skin disorder related to service. The Board notes that the opinion provided by the VA examiner in September 2018 is the only statement from a medical professional addressing the etiology of the Veteran’s skin condition. The VA examiner had the benefit of examining the Veteran and the claims file, and provided a clear basis for her medical opinion. The VA examiner also had the opportunity to review the Veteran’s VA medical records associated with the claims file, and found no relationship between his current skin disorder and active service. The Board thus affords the greatest probative weight to the opinion of the September 2018 VA examiner. The Board acknowledges the statements of the Veteran, which attribute his skin condition to contaminants present in the water supply at Camp Lejeune. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed above, however, the Board finds that the opinion provided by the VA examiner in September 2018 is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training the Veteran is not shown to have. As such, her opinion warrants more weight. In conclusion, the Board finds that the preponderance of the evidence shows that the Veteran has not had a chronic skin disorder since service. Although the Board acknowledges the Veteran’s assertions to the contrary, the majority of the evidence is inconsistent with his statements. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claim for service connection for a skin disorder is denied. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel