Citation Nr: 1807349 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-18 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a respiratory disorder other than sleep apnea, to include sinusitis, rhinitis, and bronchitis. 2. Entitlement to service connection for a skin-disorder, to include as due to sun exposure and anthrax vaccinations. ATTORNEY FOR THE BOARD T.L. Bernal, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard and had periods of active duty from December 1987 to April 1988, November 2001 to July 2002, and February 2003 to February 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2006, August 2006, and October 2008 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. Jurisdiction over the claim was subsequently given to the VA RO in Roanoke, Virginia. This case was previously before the Board in November 2012, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. Lastly, although the Veteran perfected an appeal of the denial of service connection for hypertension, service connection for the disorder was granted by the RO in a June 2011 rating decision. Thus, that issue is no longer before the Board. The issue of a skin-disorder, to include as due to sun exposure and anthrax vaccinations, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The preponderance of the evidence fails to show that the Veteran has a current respiratory disorder other than sleep apnea, to include sinusitis, rhinitis, and bronchitis CONCLUSION OF LAW The basic service connection criteria are not met regarding the claimed respiratory disorder. 38 U.S.C. §§ 1110, 1118, 1131, 5103, 5130A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a present disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in, or aggravated during, service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after service 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Regarding the Veteran's service connection claim for a respiratory disorder, the Board must first determine whether the evidence demonstrates the existence of a current disability. As indicated in the introduction, the Veteran's respiratory disorder claim has been pending since August 2005. In the February 2006 rating decision, the RO denied service connection for sinusitis. Although the Veteran did not timely appeal the decision, he did submit a report of a CT scan of the sinuses in September 2005, within one year of the decision, and was not of record at the time of the February 2006 decision. In November 2012, the Board found that the CT scan constituted new and material evidence regarding the Veteran's claim for sinusitis. Therefore, the February 2006 rating decision was not final and is considered to be the proper rating decision on appeal. In the October 2008 rating decision, the RO denied service connection for rhinitis. Although the RO considered the February 2006 rating decision as final and limited to the issue of rhinitis, the Board combined the issues into one broader issue pursuant to the holding in Clemens v. Shinseki, 23 Vet. App. 1 (2009). The record also showed that the Veteran had been diagnosed with bronchitis. Service connection was previously granted to the Veteran for sleep apnea. Therefore, in accordance with Clemens, the Board characterized the issues of sinusitis, rhinitis, and bronchitis as stated on the title page. The Veteran's service treatment records (STRs) show complaints of respiratory problems. In September 2003, he complained of shortness of breath while running. He also reported a history of bronchitis. The diagnosis was rule out sleep apnea, bronchitis, and pneumonia. A subsequent internal medicine note reflects complaints of exertional dyspnea and increased nasal congestion. Examination showed increased nasal turbinate hypertrophy but chest x-rays and pulmonary function tests were reportedly within normal limits. The diagnosis was of exertional dyspnea. The examiner commented that the Veteran may have exercise-induced asthma or early COPD (Chronic obstructive pulmonary disease) secondary to smoking. A January 2004 examination report reflects that the bronchitis was resolved. Post-service VA treatment notes reflect complaints of shortness of breath in April 2005. In August 2005, the Veteran complained of cold symptoms and was diagnosed with rule out acute sinusitis. In October 2005, he was diagnosed with allergic rhinitis. In February 2006, he was diagnosed with bronchitis with sinusitis. The Veteran underwent a VA examination in January 2006. A diagnosis of acute sinusitis was provided. However, the examiner did not comment of the Veteran's documented in-service and post-service diagnoses of sinusitis and rhinitis. VA treatment notes are negative for similar respiratory complaints after February 2006 and a August 2010 VA respiratory system examination found no evidence of pulmonary disease. Regardless of that, in November 2012 the Board found that the existence of a current disability during the pendency of the claim was established and an opinion on whether any previously existing sinusitis, rhinitis, or bronchitis was related to active duty was still needed. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was provided with VA examinations in connection with this claim in January 2006 and September 2016. During the January 2006 examination the examiner noted that in September 2003, the Veteran had reported an assessment of "nasal turbinate hypertrophy." Notably, the September 2016 VA examiner determined that the Veteran did not have a chronic respiratory condition. The examiner noted that this disorder included chest pain with application of pressure, but the Veteran had not offered a description consistent with that definition. The examiner determined that the Veteran did not have symptoms of bronchitis and the Veteran's reported symptoms and the objective evidence did not support a diagnosis for a current respiratory disorder. As no diagnosis was made for a current respiratory disorder, the examiner did not provide a nexus opinion. The Board finds that the September 2016 VA examiner's determinations to be highly probative. The VA examiner's findings were based on his examination of the Veteran and a review of the claims file. In addition, the examiner supported his findings as to the lack of a current respiratory disorder with thorough explanations. The Board has considered the Veteran's lay statements regarding his symptoms and finds him competent to report symptoms such as chest pain, numbness, and shortness of breath. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, these complaints have not been related to a current respiratory disorder. Pain alone does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 259 F.3d 1356, 1361-62 (Fed. Cir. 2001). The Board finds that the specific issue in this case, the etiology of his current complaints of chest pain, numbness, and shortness of breath, falls outside the realm of common knowledge of a lay person as it involves a complex medical question and is not something capable of lay observation, like a scar or ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation for this issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The existence of a current disorder is a required element of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.2d 1328, 1332 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection on any basis is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable based on these facts. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the Board finds that service connection is not warranted. ORDER Entitlement to service connection for a respiratory disorder other than sleep apnea, to include sinusitis, rhinitis, and bronchitis, is denied. REMAND Although the RO previously framed the skin disorder issue as being limited to a skin rash, in November 2012 the Board also broadened the issue pursuant to the holding in Clemens. With respect to the skin disorder, VA treatment notes show that the Veteran was prescribed a topical antifungal medication in October 2006. The Veteran complained of an abdominal skin rash in October 2008. This last note is dated during the pendency of the claim and indicates the presence of a current disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although VA treatment notes dated since that time do not indicate a skin rash, in November 2012 the Board found that an examination was necessary to obtain an opinion on whether any previously existing skin disorder is related to active duty, to include sun exposure and anthrax vaccinations. In this regard, the record shows that the Veteran served in the Persian Gulf from April to May 2003 and received anthrax vaccinations in March 2003 and January 2004. The Board instructed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of his claimed skin disorder, including consideration of the Gulf War presumption under 38 C.F.R. § 3.317. The Veteran was afforded a VA examination in July 2017. The Veteran reported that his skin condition first began during his deployment to the Persian Gulf in 2003 after he went swimming in a pool which contained contaminants. He telephoned home and told his wife about the rash. The Board finds that the Veteran's report as to symptomatology is credible. The examiner diagnosed the Veteran with Keratosis Pilaris and found that the skin disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner opined that the skin disorder was a normal variant finding and there were no other rashes or abnormal findings to establish additional pathology or diagnosis. The examiner also opined that the skin condition existed after military service because his onset was approximately around 2008. The examiner did not comply with the Board's 2012 remand directives and did not comment on any possible connection between the Veteran's current skin disorder and his service in the Persian Gulf. Accordingly, the Board finds that a medical addendum should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical addendum opinion pertaining to the Veteran's claimed skin disorder. The examiner should review the record prior to providing an opinion. The examiner should specifically review the Board remand instructions from November 2012. The examiner should provide an addendum opinion in light of consideration of the Gulf War presumption under 38 C.F.R. § 3.317. The Veteran's claims file should be made available to the examiner and reviewed. The examiner should consider the Veteran's report of symptoms during and since service and consider those reports credible. The examiner should also consider VA treatment notes showing a prescription for a topical antifungal in October 2006, complaints of an intermittent rash on the chest in November 2006, and complaints of an abdominal skin rash in October 2008; the Veteran's sun exposure in the Persian Gulf from April to May 2003; and the Veteran's anthrax vaccinations in March 2003 and January 2004. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs