Citation Nr: 1829131 Decision Date: 05/22/18 Archive Date: 06/05/18 DOCKET NO. 13-02 625 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE 1. Entitlement to service connection for a skin fungus disorder. 2. Entitlement to service connection for skin cancer. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) with gastritis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1968 to August 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision from the RO in Waco, Texas. This matter was previously before the Board in January 2017. The Board remanded the Veteran's claims for service connection for skin fungus, skin cancer, a right knee disorder and a left knee disorder for further development. The Board also remanded the Veteran's claim for service connection for PTSD. In a May 2012 rating decision the RO increased the Veteran's PTSD evaluation to 70 percent disabling, effective June 13, 2011. The Veteran filed a timely appeal. In a June 2015 rating decision, the RO increased the Veteran's PTSD evaluation to 100 percent disabling, effective September 23, 2014. In the January 2017 remand, the Board directed the RO to issue statement of the case (SOC) for the period prior to the Veteran receiving an evaluation of 100 percent for his PTSD. In May 2017, the RO issued a Decision Review Officer Decision (DRO decision) evaluating the Veteran's PTSD at 100 percent disabling, effective June 13, 2011. The Veteran and his representative have not proffered to appeal that decision. In an IHP, submitted by the Veteran's representative, the PTSD claim was not listed as an issue on appeal. However, the Board notes that the May 9, 2017 DRO decision does not become final until May 9, 2018. FINDINGS OF FACT 1. The Veteran's currently diagnosed skin fungus was not incurred in or as a result of service. 2. The Veteran's skin cancer, specifically squamous cell carcinoma, was not incurred in or as a result of service, to include any in-service herbicide exposure. 3. The Veteran's right knee arthritis did not manifest to a compensable degree within the applicable presumptive period; and a right knee disorder is not otherwise related to an in-service injury, event, or disease. 4. The Veteran's left knee arthritis did not manifest to a compensable degree within the applicable presumptive period; and a left knee disorder is not otherwise related to an in-service injury, event, or disease. 5. The Veteran's GERD with gastritis, manifests with reflux, pyrosis and regurgitation but not accompanied with substernal, arm or shoulder pain, productive of considerable impairment of health or material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin fungus disorder, have not been met. 38 U.S.C. §§1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for skin cancer, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2017). 3. The criteria for service connection for a right knee disorder, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for a left knee disorder, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for disability rating in excess of 10 percent for GERD with gastritis, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor the representative has raised any issues with the duty to notify or 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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection, generally Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, 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.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for Skin Fungus Here, the Veteran's service treatment record (STR) from March 1969 shows that the Veteran was given bacitracin ointment to treat lesions between his toes. An April 1969 STR shows that the Veteran reported an onset of tinea versicolor (patches of white or tan on the skin in various sizes caused by a fungus malassezia furor) prior to service. See Dorland's Illustrated Medical Encyclopedia, 32nd edition. The Veteran was afforded a VA examination in May 2010. Previously, the Board found the May 2010 VA opinion inadequate because the examiner did not include the all of the Veteran's current skin disorders and skin treatment that the Veteran received during service, specifically the March 1969 treatment. In December 2011, the Veteran was afforded a general medical VA examination. However, the December 2011 VA examiner did not provide a medical opinion as to whether the Veteran's skin disorders were related to his military service. In March 2017, subsequent to the January 2017 Board remand, the Veteran was afforded a VA examination for his skin conditions. The VA examiner reported that the Veteran had the following current skin conditions: dermatitis, eczema, tinea versicolor, onychomycosis and squamous cell carcinoma with excision. The VA examiner reported that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner's rationale was that there is no objective evidence to opine that the squamous cell carcinoma was related to any complaints or treatment for skin conditions during service in March 1969 or in April 1969. The VA examiner noted that squamous cell carcinoma is not considered related to Agent Orange/herbicide exposure. The VA examiner also opined that while post-service VA records document eczema with xerosis to the Veteran's feet, which still exists, the Veteran's STRs do not support a finding that the Veteran had similar issues in service. The examiner reported that although the Veteran currently has physical evidence of onychomycosis (fungal infection of the toenails), the Veteran's STRs are negative for objective evidence to support that the Veteran had onychomycosis during service. After review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a skin fungus disorder. Regarding direct service connection, the Board finds that the Veteran meets the first element for a direct service connection claim, which is a current disability because the Veteran has a current skin fungus disorder, including onychomycosis, a fungal infection of the toenails. The second element for direct service connection is an in-service injury, event or disease. In this case, the Veteran was treated for lesions between his toes in March 1969 and treated for tinea versicolor in service in April 1969. Therefore, the Veteran meets the second element for direct service connection. Finally, the last element for direct service connection, a causal relationship between the current disorders and the disease or injury incurred during service, the Board finds that the evidence of record is negative for a nexus between the Veteran's current skin disorders and his in-service treatment for lesions between his toes and tinea versicolor. Although the Veteran believes that his current skin disorders are related to his service, as a layperson, he has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372-1377 (Fed. Cir. 2007). Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to a subsequently diagnosed skin disability is also a matter that requires medical expertise to determine. Clyburn v. West, 12 Vet. App. 296, 302 (1999). In this regard, the diagnosis and etiology of skin disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of any current skin disorders is not competent medical evidence. The Board finds the opinion of the March 2017 VA examiner to be significantly more probative than the Veteran's lay assertions. Physicians must rely on examination, medical history and expertise to render a diagnosis and determine etiology. The Board notes that the March 2017 VA examiner noted all of the Veteran's current skin disorders and found that they were not etiologically related to his military service. Therefore, the persuasive and probative evidence of record is negative for a nexus between the Veteran's in-service skin complaints and his current skin disorders. In sum, the Board finds that the preponderance of the evidence is against a claim for service connection for a skin fungus disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service Connection for Skin Cancer (Squamous Cell Carcinoma) In February 2009, at a VA treatment facility, the Veteran was evaluated for a lesion on his left forearm. The Veteran was also evaluated from the waist up by a VA physician and showed no other skin abnormalities. In March of 2009, the lesion on the Veteran's left forearm was diagnosed as skin cancer. An April 2009 final pathology report showed no residual skin cancer. The Board has considered all of the evidence of record and finds that presumptive service connection for skin cancer, to include squamous cell carcinoma, is not warranted. In this case, the Veteran's squamous cell carcinoma is not listed as a disability subject to presumptive service connection under 38 C.F.R. § 3.307(a)(6) and 38 C.F.R. § 3.309(e). The Veteran was treated one time during service for lesions between his toes. He did not complain of or seek treatment for a chronic any skin condition in active service and there is no evidence that skin cancer was shown within a year of his discharge from active service. VA treatment records show that the Veteran had surgery to remove a skin cancer lesion on his left arm in March 2009. Further, the March 2017 VA examiner's probative medical opinion, which is noted above, weighs against a finding that the Veteran's skin cancer is related to his exposure to Agent Orange. In sum, the Board finds that the preponderance of the evidence is against a claim for service connection for skin cancer. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service Connection for a Right Knee Disorder In May 2009, the Veteran filed a claim for service connection for "bad knees." In the May 2009 application, the Veteran reported that he last worked in farming in 2007. STRs show that in April 1969 the Veteran was treated for an arthritic type of right leg pain. The STRs are negative for any subsequent right leg treatment or for any right knee treatment. An April 2012 VA treatment record shows that the Veteran was afforded x-rays for his right knee. The right knee x-rays showed degenerative changes with margin osteophytes with moderate narrowing of the medial joint compartment. The right knee x-rays showed irregularity of the intercondylar eminence of the tibia possibly from arthritis but subtle fracture is not excluded. In a July 2012 a VA Orthopedic consultation the Veteran reported having had right knee pain for 40 years. The Veteran reported that he initially injured it in Vietnam. In March 2017, the Veteran was afforded a VA examination for his bilateral knee conditions. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that there is insufficient objective data available to support any positive causal relationship between the conditions of the Veteran's knees in-service with the condition of his knees out-of-service. Furthermore, the VA examiner reported that there are insufficient diagnoses found during service that are of sufficient severity to lead to any chronicity, which could support a nexus relationship. After review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for a right knee disorder. Regarding a direct service connection claim, the first required element is a current disability. Here, the Veteran has a diagnosis for right knee arthritis therefore he meets the first required element for direct service connection. The next required element for direct service connection is an in-service incurrence or aggravation of a disease or injury. During service, the Veteran was treated for right leg pain. His application for service connection and his VA treatment records show that his complaints are specifically related to his knees and not his leg. However, giving the Veteran the benefit of the doubt the Board finds that the Veteran meets the second element for a direct service connection claim for his right knee. The third and final element for service connection is a nexus between the present disability and the disease or injury incurred or aggravated during service. Here, the Board finds that the preponderance of the evidence is against a finding for a nexus between the Veteran's in-service treatment for his right leg and his right leg arthritis. In July 2012, the Veteran reported to a VA treating physician that his right knee pain began 40 years ago. However, by 1972, 40 years prior to 2012, the Veteran was three years removed from service so his right knee pain did not begin during service. Also, the Board notes that private treatment records, which are part of the evidence of record, from 1994 and 2006 and 2008 are negative for right knee complaints. The Veteran also submitted buddy statements asserting that his bilateral knee disorder is related to his military service. The Board notes that a layperson is competent to report on matters observed or within his personal knowledge. Jandreau v. Nicholson, 492 F.3d 1372-1377 (Fed. Cir. 2007). The Board has considered the lay evidence. However, the Board finds of more probative value the opinion and findings by the March 2017 VA examiner. The March 2017 VA examiner relied upon the Veteran's medical history, diagnostic testing and an examination of the Veteran. The March 2017 VA examiner found that the evidence of record does not support a nexus between the Veteran's current right knee disorder and his in-service treatment for his right leg. Regarding presumptive service connection for arthritis, which is a chronic disease, the evidence of record is negative for right knee arthritis that became manifest to a degree of 10 percent or more within one year after the date of separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). The Veteran's right knee arthritis is shown to have manifested more than one year of separation from service, based upon the evidence of record. In sum, the Board finds that the preponderance of the evidence is against a claim for service connection for a right knee disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service Connection for a Left Knee Disorder The Veteran's STRs show no complaints of, or treatment for the Veteran's left knee or left leg during service. An April 2012 x-ray of the Veteran's left knee showed degenerative changes with marginal osteophytes with marked narrowing of the medial joint compartment and no fracture or dislocation. The March 2017 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The March 2017 VA examiner provided a rationale to support his opinion and found insufficient diagnoses during service to support a nexus between the Veteran's current knee disorders and his military service. After review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for a left knee disorder. Regarding the Veteran's left knee, he meets the first required element for direct service connection, a current disability, as he has a current diagnosis of left knee arthritis. However, the Veteran does not meet the second required element for service connection for his left knee. As the Veteran does not meet the second required element for his left knee the Board cannot proceed with a direct service connection analysis for his left knee claim. Regarding presumptive service connection for arthritis, which is a chronic disease, the evidence of record is negative for left knee arthritis that became manifest to a degree of 10 percent or more within one year after the date of separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). The Veteran's left knee arthritis is shown to have manifest more than one year of separation from service, based upon the evidence of record. In sum, the Board finds that the preponderance of the evidence is against a claim for service connection for a left knee disorder. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increase in Disability Evaluation for GERD with Gastritis Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155, 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). GERD with gastritis is appropriately rated under Diagnostic Code 7346, which covers ratings for hiatal hernia. Under this Diagnostic Code, a minimum 10 percent rating is warranted where the evidence demonstrates the presence of two or more of the symptoms identified in the criteria for the 30 percent rating, but of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress, with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptoms combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). In this case, in June 2010 the RO granted service connection for the Veteran's GERD with gastritis at a non-compensable evaluation. In November 2012, the RO evaluated the Veteran's GERD with gastritis at 10 percent disabling. In March 2017, the Veteran was afforded a VA examination for Esophageal Conditions (including gastroesophageal reflux disease (GERD), hiatal hernia and other esophageal disorders). The examiner noted that Veteran was diagnosed with GERD. The examiner reported that the Veteran had reflux, pyrosis and regurgitation associated with his GERD. The examiner also reported that the Veteran's recurrent reflux, pyrosis and regurgitation were not accompanied with substernal, arm or shoulder pain. The examiner noted that the Veteran did not have weight loss or dysphagia and was negative for hematemesis and melena with moderate anemia. After review of the evidence of record, the Board finds that the preponderance of the evidence is against a disability evaluation in excess of 10 percent for the Veteran's service-connected GERD with gastritis. The Board finds that the Veteran's GERD with gastritis disability more nearly approximates an evaluation of 10 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Board finds that the preponderance of the evidence is against an evaluation of 30 percent disabling for the Veteran's GERD with gastritis because at no time were the Veteran's reflux, pyrosis and regurgitation accompanied by substernal, arm or shoulder pain. Also, the evidence of record is negative for pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptoms combinations productive of severe impairment of health. In an IHP submitted in March 2018, the Veteran's representative asserted that the severity of the Veteran's GERD with gastritis was not accurately captured in the VA examination. Additionally, the Veteran submitted statements from his wife regarding his symptoms related to GERD with gastritis. While the Board has considered the statements from the Veteran's representative and his wife, the Board finds more persuasive the opinion and findings from the March 2017 VA examination. The March 2017 VA examiner reviewed the Veteran's medical history and carefully reviewed symptoms related to the Veteran's service-connected GERD with gastritis. The March 2017 VA examination reported the specific symptoms to the Veteran's service-connected GERD with gastritis. The Board, as the finder of fact, must determine whether those specific symptoms warrant an evaluation in excess of 10 percent under 38 C.F.R. § 4.114, Diagnostic Code 7346. The March 2017 VA examination showed that an evaluation for GERD with gastritis in excess of 10 percent is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7346. Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for the Veteran's GERD with gastritis. See 38 C.F.R. § 4.114, Diagnostic Code 7346. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a skin fungus disorder is denied. Service connection for skin cancer is denied. Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. A disability rating in excess of 10 percent for GERD with gastritis is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs