Citation Nr: 1808190	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  13-21 750A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for a prostate disability, to include benign prostatic hypertrophy (BPH).

2.  Entitlement to service connection for gallbladder disease, status post cholecystectomy, with scar.

3.  Entitlement to service connection for a cervical spine disorder, to include cervical spondylosis with perched facet.

4.  Entitlement to service connection for a thoracic spine disorder, to include T-3 fracture and thoracic spondylosis with T-12 wedge, hypertrophic spurring, and disc disease.

5.  Entitlement to service connection for a skin disorder, to include sebhorrecic keratosis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Shouman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1967 to November 1971, from March 2002 to September 2002, from October 2002 to March 2003, from January 2004 to September 2004, from February 2005 to June 2005, from April 2007 to September 2007, and from May 2008 to September 2008.  He was awarded the Air Force Commendation Medal with 1 Oak Left Cluster and the Air Force Outstanding Unit Award with 3 Oak Left Clusters.  The Veteran had service in the Air National Guard.

These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision (mailed in May 2010) of a U.S. Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for prostate dysfunction; service connection for gallbladder disease, post cholecystectomy, with scar; service connection for cervical spondylosis with perched facet (claimed as neck condition/cervical spasm); service connection for thoracic spine fracture T-3 with thoracic spondylosis with T-12 wedge, hypertrophic spurring, and disc disease; service connection for seborrheic keratosis/skin; and service connection for laceration of the forehead (claimed as head trauma).

The Board considered the appeal in August 2015.  At that time, claims were remanded for additional development.  With respect to the issues of entitlement to service connection for a prostate disability and entitlement to service connection for gallbladder disease, the Board finds there has been substantial compliance with its August 2015 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of Stegall v. West, 11 Vet. App. 268 (1998), when the examiner made the ultimate determination required by the Board's remand), aff'd, 287 F.3d 1377 (2002).  For example, in furtherance of the Board's remand instructions, the AOJ scheduled the Veteran for examinations in connection with his claims and contacted the Veteran to complete the appropriate forms authorizing 
VA to obtain complete private medical records.  The claims were then readjudicated in July 2016.

At a September 2010 VA scar examination, the examiner reported that the Veteran was "claiming service-connection for a scar on his scalp rather than the laceration to the left front of the forehead that is stated on the 2507." The examiner identified a one-centimeter laceration scar to the Veteran's scalp. The AOJ awarded service connection for that scar in a July 2013 rating decision.  However, the AOJ subsequently certified for appeal a claim that continues to be phrased as "laceration of the forehead (claimed as head trauma)."  Based on the Veteran's clarification to the September 2010 VA examiner of the location of his scar (scalp rather than forehead), it appeared that the Veteran's appeal had been satisfied in full.  Thus, in its August 2015 remand, the Board instructed the AOJ to clarify with the Veteran whether the award of service connection for scarring on his forehead crown satisfied his initial claim phrased as residuals of laceration to the forehead, claimed as head trauma.  In a November 2015 letter to the Veteran, the AOJ sought such clarification from the Veteran, and the record reflects no response from him.  Therefore, the Board finds that the award of service connection for residuals of laceration to the forehead, claimed as head trauma, to constitute a full grant of the service connection benefit sought for the claim, and that issue is no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date).

In September 2017, the Board sent the Veteran a letter seeking clarification on his representation.  The letter stated that if neither the Veteran nor his new representative responded within thirty days, the Board will assume that the Veteran wishes for Disabled American Veterans to continue to be recognized as his representative.  The Board did not receive a timely response to the September 2017 letter.  Therefore, the Board considers Disabled American Veterans as the Veteran's representative.

The issues of entitlement to service connection for a cervical spine disorder, entitlement to service connection for a thoracic spine disorder, and entitlement to service connection for a skin disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The competent and probative evidence shows that the Veteran's BPH was first treated and assessed outside any active duty, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA) period.

2.  The competent and probative evidence fails to show that it is at least as likely as not (50 percent or greater probability) that the Veteran's BPH was aggravated beyond its natural progression by subsequent duty.

3.  The competent and probative evidence shows that the Veteran underwent a laparoscopic cholecystectomy due to gallstones outside any active duty, ACDUTRA, or INACDUTRA period.

4.  The competent and probative evidence fails to show that it is at least as likely as not (50 percent or greater probability) that the Veteran's gallbladder disease was aggravated beyond its natural progression by subsequent duty.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a prostate disability, to include BPH, have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017).

2.  The criteria for service connection for gallbladder disease, status post cholecystectomy, with scar have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends that he is entitled to service connection for a prostate disability, to include BPH, and to service connection for gallbladder disease, status post cholecystectomy, with scar.  After reviewing the record, the Board finds that the Veteran's BPH and gallbladder disease were assessed and first treated outside any active duty, ACDUTRA, or INACDUTRA period, and that they were not aggravated beyond their natural progression by subsequent duty.  The reasons and bases for this decision will be explained below.

The Board has considered the issues of entitlement to service connection for a prostate disability and entitlement to service connection for gallbladder disease and decided on the matters based on the pertinent evidence.  Neither the appellant nor the representative has raised any issues with respect to VA's duties, and no other issues been reasonably raised by the record with respect to VA's duties.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  Thus, the Board will proceed to the merits of the appeal.

I.  Legal Principles

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a) (2017).  To establish entitlement to service-connected compensation benefits, a 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 or aggravated during service'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

"Active military, naval, and air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).

When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.

With respect to aggravation of a noted condition, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened.  See Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002) (explaining that aggravation of a preexisting condition requires a "worsening of the enduring disability and not merely a temporary flare-up of symptoms associated with the condition causing the disability").

Certain evidentiary presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases that manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service-are provided by law to assist veterans in establishing service connection for a disability or disabilities.  38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309.  The advantages of these evidentiary presumptions do not extend to those whose service connection claim is based on ACDUTRA or INACDUTRA periods.  Smith v. Shinseki, 24 Vet. App. 40, 44-45 (2010); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period).  Once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, veteran status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA.  Hill v. McDonald, 28 Vet. App. 243, 251-52 (2016).  In this case, the Veteran has been granted service connection for a left knee disability based on his active service in 1971, and as such, has achieved Veteran status for that period.  The grants of service connection for tinnitus and scar (head) are not specific as what period or periods were the basis of the grant.

The Board must consider all the evidence of record and make appropriate competence, credibility, and weight determinations.  See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

A veteran is competent to report symptoms and experiences observable by her or his senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).  Here, the Board finds the Veteran credible, as the statements provided by the Veteran are detailed and consistent.

II.  Analysis

The Board finds that the Veteran does not meet the requirements for service connection for prostate disability, to include BPH, or for gallbladder disease, status post cholecystectomy, with scar.

The evidence shows that the Veteran has BPH.  The Veteran first sought treatment for increased urinary frequency, hesitancy, and intermittent burning with ejaculation on February 1, 2005.  At that time, he was given an assessment of BPH. 09/03/2015, STR - Medical (File 2), at 61.  He had subsequent treatment for prostate problems, to include a reported surgical-type procedure with a urologist.  See 01/31/2010, VA Examination.  The Veteran entered a period of active service on February 20, 2005.  As there is no entrance examination prior to the prior of service beginning of this period of service in February 2005 and an lack of evidence aggravation during the period of ACDUTRA, the presumption of aggravation does not apply.  The Board finds that the evidence shows the Veteran's prostate disability pre-existed his February 2005 service.  With respect to the Veteran's gallbladder, the evidence shows that the Veteran underwent a laparoscopic cholecystectomy due to gallstones in 1988 or 1989.  See 01/31/2010, VA Examination.  This occurred outside the Veteran's active duty periods.

A VA examination was scheduled for the Veteran following the Board's August 2015 remand to determine whether his prostate disability or gallbladder disease were aggravated by subsequent service, but the Veteran failed to appear for the examination.  Neither the Veteran nor the Veteran's representative sought to reschedule the examination.   The examiner whom the Veteran was scheduled to meet indicated that he cannot provide a medical opinion without examining the Veteran.  As such, this competent medical evidence is not available for consideration.

The Board notes the service treatment records show no treatment, complaints, or aggravation of the Veteran's BPH or gallbladder during active service.  The Board distinguishes the records request in the Remand section below as the records for the Veteran's BPH and gallbladder are of record; however, the record does not establish active duty service in 1996 which is critical to the claimed cervical and thoracic spine disorders.

The Board finds the preponderance of the relevant, competent evidence weighs against finding an in-service aggravation of the Veteran's BPH or gallbladder.  
As such, the second element of service connection is not met.  Therefore, service connection for a prostate disability and service connection for a gallbladder disease are not warranted.


ORDER

Service connection for a prostate disability, to include BPH, is denied.

Service connection for gallbladder disease, status post cholecystectomy, with scar, is denied.


REMAND

With respect to the claims of entitlement to service connection for a cervical spine disorder and for a thoracic spine disorder, the AOJ failed to substantially comply with the Board's August 2015 remand directives.  As such, an additional remand is necessary before the Board can adjudicate those issues.  See Stegall, 11 Vet. App. at 271 (where the remand orders of the Board are not complied with, . . . ensure compliance); see also Dyment, 13 Vet. App. at 146-47 (although under Stegall 
VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required).  The Board also finds that additional development is necessary before it can adjudicate the issues of entitlement to service connection for a skin disorder.

With respect to the claims of entitlement to service connection for a cervical spine disorder and for a thoracic spine disorder, the Board's August 2015 remand instructed the AOJ to request from the appropriate agencies detailing the Veteran's periods of ACDUTRA and INACDUTRA from November 1995 to February 1996.  The record does not reflect the AOJ making such a request.  Therefore, the case must be returned so that the AOJ can make the appropriate request.  

With respect to the claim of entitlement to service connection for a skin disorder, the Veteran was first evaluated for multiple nevi and seborrheic keratosis in December 2005.  The Veteran's military records reflect that he may have served on active duty or INACDUTRA at that time.  Therefore, the case must be returned so that the AOJ can request from the appropriate agencies to detail the Veteran's duty periods in December 2005.

Additionally, on remand, any other outstanding, pertinent VA treatment records should be obtained.

Accordingly, the case is REMANDED for the following actions:

1.  Request from the appropriate agencies detailing the Veteran's active duty, ACDUTRA and INACDUTRA periods for from November 1995 to February 1996, and in December 2005.

2.  Obtain and associate with the claims file any outstanding, pertinent VA treatment records since service.  As many attempts should be made as necessary to obtain those records, to include requesting a specific negative response if no records are located.  The appellant is to be notified of any unsuccessful effort to obtain outstanding VA and private testament records in order to allow the appellant the opportunity to obtain and submit those records for VA review.  Moreover, notify the appellant that he may submit VA Forms 21-4142 to authorize any private medical provider, including (a) Dr. B.K. of Regional Urology and (b) Christus Schumpert Healthplex since November 2010, to disclose and release to VA information on his treatment, and then request those medical records from the private medical providers.  Additionally, notify the appellant that he may submit any relevant VA and private treatment records in his possession to VA

3.  Provide the Veteran with adequate notice of the date and place of the requested examination at his latest address of record. A copy of all notifications must be associated with the claims folder. He is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2017).

4.  After all development has been completed and returned from steps 1-2 above, schedule the Veteran for an examination of his spine.  (If the Veteran fails to report to the examination, then have an appropriately qualified VA examiner must answer the questions below.)  The examiner is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following:

Did any diagnosed cervical spine or thoracic spine disability clearly and unmistakably preexist the Veteran's active duty, ACDUTRA, or INACDUTRA?  If so, is there clear and unmistakable evidence that such preexisting disability did not undergo an increase in the underlying pathology; i.e., was not aggravated by the Veteran's active duty, ACDUTRA, or INACDUTRA?  If there was an increase in the severity of such disability during his active duty, ACDUTRA, or INACDUTRA service, was that increase clearly and unmistakably due to the natural progression of the disability?

Consider all lay and medical evidence.  Provide a comprehensive rationale for any opinions and conclusions.  If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

5.  After all development has been completed and returned from steps 1-2 above, schedule the Veteran for an examination of his skin.  (If the Veteran fails to report to the examination, then have an appropriately qualified VA examiner must answer the questions below.)  The examiner is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following:

Did any diagnosed skin disability clearly and unmistakably preexist the Veteran's active duty, ACDUTRA, or INACDUTRA?  If so, is there clear and unmistakable evidence that such preexisting disability did not undergo an increase in the underlying pathology; i.e., was not aggravated by the Veteran's active duty, ACDUTRA, or INACDUTRA?  If there was an increase in the severity of such disability during his active duty, ACDUTRA, or INACDUTRA service, was that increase clearly and unmistakably due to the natural progression of the disability?

Consider all lay and medical evidence.  Provide a comprehensive rationale for any opinions and conclusions.  If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

6.  After all development has been completed and returned from all steps above, if any benefit sought remains denied, then issue a supplemental statement of the case with consideration to all pertinent evidence, and return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and arguments on any matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam).

Remanded claims must be afforded expeditious treatment.  The law requires that all claims remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C. §§ 5109B, 7112.




______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs