Citation Nr: 18161279 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 16-55 958 DATE: December 31, 2018 ORDER Entitlement to service connection for a low back disorder is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for hypertension is granted. Entitlement to service connection for diabetes mellitus is granted. REMANDED Entitlement to service connection for seborrheic dermatitis is remanded. Entitlement to service connection for stomach problems, claimed as diarrhea, is remanded. FINDINGS OF FACT 1. The Veteran’s low back disorder is related to service. 2. At no point during the appeal period has the Veteran had bilateral hearing loss to an extent recognized as a disability for VA purposes. 3. The Veteran’s hypertension had its onset during service. 4. The Veteran’s diabetes mellitus had its onset during service. CONCLUSIONS OF LAW 1. The criteria for service connection for low back condition have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 3. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 4. The criteria for service for connection diabetes mellitus have been met. [38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 4, 1983 to February 7, 1990, from October 2, 2001 to May 3, 2002, from December 7, 2003 to March 2, 2005 and from October 17, 2010 to November 18, 2011, with service in the Southwest Asia theater of operations. The Veteran also had several periods of active duty with the National Guard between 2006 and 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2016, the RO issued a rating decision granting service connection for shoulder impingement syndrome, right shoulder (claimed as right shoulder condition, right knee strain with osteoarthritis, tinnitus, gastroesophageal reflux disease (GERD), and carpal tunnel syndrome in the left and right upper extremities effective February 8, 2010. As such, these issues are no longer before the Board. Service Connection 1. Low Back Condition The Board finds that service connection for low back condition is warranted. 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). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); see also Jandreau, 492 F.3d 1376 -77. In this case, the Veteran was diagnosed with lumbosacral strain in 2004. See Disability Benefits Questionnaire (December 2015). In 2015, the Veteran continued to experience back pain. Id. Further, his service treatment records show that during service he suffered back pain, which was treated with asprin, warm soaks, and an ice massage. Thus, the crux of this case is whether the Veteran’s current disability had its onset in service. As discussed above, nexus can be established by lay testimony describing symptoms that support a later diagnosis, which Veteran has provided in this instance. A Veteran is competent to testify to any pain he has suffered, and “his testimony can only be rejected only if found to be mistaken or otherwise deemed not credible.” CFR 3.159(a)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Veteran contends that that he has experienced continuous pain since service. The Veteran stated that, “[his] condition began in Taji Iraq when tied down equipment with chains, loading ammunition boxes while wearing flak jackets. The condition has worsened over time.” See Disability Benefits Questionnaire (December 2015). The Board acknowledges a 2015 examination that opines that the Veteran’s present disability is not related to service. In December 2015, a private examiner stated, “The injury has likely occurred at Taji Iraq, but insufficient records about the chronicity of this problem and lack of objective physical findings on exam causes diagnostic uncertainty.” Disability Benefits Questionnaire (December 2015). The Board finds that this opinion is inadequate as it fails to address the competent, credible lay evidence of back pain since service. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim of service connection could be proven”). The opinion is also problematic as the Board cannot rely on a negative nexus opinion that is predicated on the absence of subsequent medical treatment. Therefore, this examination provides limited probative value. Even though the medical opinion in the record is inadequate, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran’s favor and therefore a remand is not necessary to obtain another medical opinion as the available evidence is sufficient for that purpose. 38 C.F.R. § 3.159 (c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Because the only VA examination afforded to the Veteran for this claim is inadequate and of limited probative value, the Board finds that the evidence of record, in considering the Veteran’s lay statements are in relative equipoise. Therefore, the Veteran prevails. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Affording the Veteran the benefit of the doubt, service connection for degenerative disc disease of the lumbar spine is granted. 2. Bilateral hearing loss The Board finds that service connection for bilateral hearing loss is not warranted because the Veteran has not had hearing loss for VA purposes during the appeal period. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the purposes of the applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The November 2015 audiological examination demonstrated that the Veteran does not have a hearing loss disability for VA purposes. The results of this examination revealed speech recognition ability of 94 percent the right ear and 96 percent in the left ear. The Veteran’s auditory thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 25 25 LEFT 15 15 15 20 35 These results do not show hearing loss for VA compensation purposes in either ear because auditory thresholds were not 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hz or 26 decibels or more in at least three of those frequencies, and the speech recognition scores were not less than 94 percent in either ear. There are no other auditory findings in the record that are sufficient to establish hearing loss during the appeal period and the Veteran is not competent to state that he has a hearing loss disability pursuant to 38 C.F.R. § 3.385, as such a conclusion is based on specific, objective auditory threshold findings. Thus, notwithstanding his assertion that he has a hearing loss disability, the objective audiometric evidence reflects that he does not have a current hearing loss disability for VA purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). As such, service connection for a bilateral hearing loss disability must be denied. 3. Hypertension and Diabetes The Veteran seeks service connection for hypertension and contends that these conditions had their onset during a period of active duty. The Veteran was diagnosed with both hypertension and diabetes mellitus in September 2009 and received treatment for both conditions during the appeal period. Thus, the crux of this issue is whether the Veteran was on active duty when the conditions first manifested. Service connection may be granted for a disability or injury incurred in or aggravated by “active military service.” 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a present disability the claimant must show the existence of a present disability, an in-service incurrence or aggravation of a disease or injury, and a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The term “active military, naval, or air service” includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. For members of a state Army National Guard, ACDUTRA includes any period of service in which the National Guardsman has been ordered into Federal service by the President of the United States, or performed full-time duty under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101 (22)(C); see also Allen v. Nicholson, 21 Vet. App. 54, 56-58 (2007). The Board notes that only service department records can establish if and when a person was serving on active duty or ACDUTRA. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). In this case, all of the elements of service connection for hypertension and diabetes mellitus are met because the competent and credible lay and medical evidence of record establish that these disabilities had their onset during the Veteran’s period of ACDUTRA and as a result of his service. The Veteran was diagnosed with hypertension and is still currently being treated for it. See August 2016 Evaluation of Dr. M.S., Physician; see also Disability Benefits Questionnaire, Medical Opinion (December 2015). Furthermore, the Veteran’s orders dated July 17, 2009 show that he was ordered to active duty for special work for the period from July 20, 2009 through September 30, 2009 pursuant to 32 U.S.C. § 502 (f). As noted above, ACDUTRA includes service by a member of a state Army National Guard performing full-time duty under the provisions of 32 U.S.C. § 502. Thus, because the Veteran’s hypertension and diabetes was incurred during a period of ACDUTRA, service connection for both conditions is warranted. REASONS FOR REMAND 1. Seborrheic dermatitis is remanded. The Veteran claims that he has a facial skin rash condition that began in service and continues to this day. Service treatment records show several instances in which the Veteran was treated for a skin rash. However, in December 2015, a physician assistant examined the found no evidence of the Veteran’s claimed skin condition. On the examination form, physician assistant wrote “Seborrheic dermatitis,” explaining this diagnosis was “based solely off history as related by claimant and records review. The condition is in h[is] history, but due to no physical findings on exam, I could not confirm this.” The physician assistant asserted that it was less likely than not that the Veteran’s claimed seborrheic dermatitis was incurred in or caused by service because “Seborrheic Dermatitis is a skin condition which is not transmissible and you cannot catch the condition from working with ammunition as the claimant states.” Disability Benefits Questionnaire, Medical Opinion (December 2015). This examination does not make it clear as to whether or not the Veteran has a current diagnosis of a skin condition and whether such is related to service or service-connected disability. As the evidence suggests that the Veteran may have a skin disorder with its onset in service, remand for VA examination is needed. 2. Stomach problems is remanded. The Veteran seeks service connection for stomach problems, claimed as diarrhea, which he claims began in service. Service treatment records confirm that the Veteran experienced episodes of diarrhea, but subsequent examinations have conflated the Veteran’s stomach problems, claimed as diarrhea, with his GERD. Thus, the Veteran has not received a VA examination solely to determine the existence of current disability that may be incurred by service or aggravated by service. Because the evidence suggests that the Veteran’s diarrhea may be related to service, further development, namely a VA medical opinion, is needed to decide the Veteran’s claim. The matter is REMANDED for the following action: 1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his skin and stomach problems, claimed as diarrhea. 3. After completing the above development, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his skin condition and stomach problems. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the Veteran’s stomach problems, claimed as diarrhea, and skin rash symptoms are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had an associated condition, when did that condition resolve? (b) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (c) If not directly related to service, is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (d) If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies)? In answering all questions, please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information support your opinion, and (2) explain how that evidence justifies your opinion. After completing the above development, including any additional development that may be warranted, readjudicate the appeal. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Gillespie, Law Clerk