Citation Nr: 19106928 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-17 781 DATE: January 29, 2019 ORDER Entitlement to service connection for a lumbosacral spine disability (claimed as a back disability), for substitution purposes, is denied. Entitlement to service connection for a cervical spine disability (neck), for substitution purposes, is denied. Entitlement to service connection for a skin disability, for substitution purposes, is denied. Entitlement to service connection for a disability manifested by memory loss, for substitution purposes, is denied. Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. A lumbosacral spine disability was not manifested in service or in the first post-service year with respect to arthritis, and the preponderance of the evidence is against a finding that the Veteran’s current lumbosacral spine disc space compression at L4-L5 and L5-S1, with diffuse posterior bulges at those levels, is otherwise related to an event, injury, or disease in service. 2. A cervical spine disability was not manifested in service or in the first post-service year with respect to arthritis, and the preponderance of the evidence is against a finding that the Veteran’s current cervical stenosis status post cervical fusion at C2-C7 is otherwise related to an event, injury, or disease in service. 3. A skin disability was not manifested in service, and the preponderance of the evidence is against a finding that the Veteran’s current skin disability is otherwise related to an event, injury, or disease in service. 4. There is no competent evidence of a disability manifested by memory loss during or just prior to the pendency of the claim. 5. The Veteran died in September 2014; the immediate cause of death was squamous cell lung carcinoma; diabetes mellitus and arteriosclerotic coronary artery disease were listed as other significant conditions contributing to death but not related to the stated cause of death. 6. At the time of his death, the Veteran was not service connected for any disabilities. 7. The evidence of record does not demonstrate that a disability of service origin contributed to the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a disability manifested by memory loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for establishing service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1987 to August 1991, to include service in the Southwest Asia theater of operations from December 1990 to May 1991. He died in September 2014. The appellant is the Veteran’s surviving spouse and has been substituted as the claimant for the purposes of processing the above-listed service connection claims to completion. 38 U.S.C. § 5121A. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in September 2018 when they were remanded for additional development. While the record reflects the September 2018 remand was returned undelivered, the remand was sent to the appellant’s address of record. The appellant has not otherwise notified VA of any change in her address. Accordingly, the Board finds that the RO substantially complied with the September 2018 Board remand directives, and the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board simply does not have any basis to find a better address for the appellant, and can not delay the adjudication of this case longer. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). 1. Entitlement to service connection for a lumbosacral spine disability (claimed as a low back disability) The Veteran had a current diagnosis of disc space compression at L4-L5 and L5-S1, with diffuse posterior bulges at those levels. See April 1998 VA examination. Service treatment records are silent for treatment, findings, or diagnosis relating to the lumbosacral spine. Regarding nexus, there is only one competent opinion of record, which is against the claim. On April 1998 VA examination, it was noted that the Veteran’s low back pain was not associated with any identifiable abnormality of function, lower extremity reflex sensation or power or radiological or imaging abnormality. The examiner opined that it (low back pain) was probable in a man who is on his feet all day working in a restaurant that reduction of his weight to a figure closer to the National Institute of Health standard would be associated with improvement of his spinal discomfort. Notably, there is no competent medical opinion in support of the claim. To the extent the Veteran may have been relating his lumbosacral spine disability to service, he is not competent to do so, as he does not have the requisite medical expertise to opine as to the etiology of a disability identifiable only by spinal imaging studies. Moreover, while the Veteran reported his low back pain started in approximately February 1991 on January 1998 VA examination, he also related he did not recall any specific event that caused him to have low back pain, even though he did lots of lifting as an x-ray technician. Finally, as there is no evidence of a lumbosacral spine arthritis until 1998, approximately 7 years after the Veteran’s separation from service, there is no basis to award service connection for arthritis on a presumptive basis. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no indication that arthritis manifested during service to a sufficient degree to identify the disease to allow for service connection based on recurrence of symptomatology. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In reaching this decision, 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 in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a cervical spine disability. The Veteran has a current diagnosis of cervical stenosis status post cervical fusion at C2-C7. See January 1998 VA examination. Service treatment records include a June 1991 report noting the Veteran’s complaint of left thoracic spine pain, secondary to boxing; the assessment was left rhomboid strain. A July 1991 report noted his complaint of upper back pain for one day; the assessment was thoracic strain. On May 1998 VA examination, the Veteran reported he had undergone two cervical surgeries/fusions, first in February 1996, and second in November 1996. Regarding nexus, as above, there is only one competent opinion of record, which is against the claim. On April 1998 VA examination, it was opined that there was no evidence in any way the Veteran’s congenital cervical spine condition was adversely affected by any of the circumstances involved in his period of military service. Notably, there is no competent medical opinion in support of the claim. To the extent the Veteran may have been relating his cervical spine disability to service, he is not competent to do so, as he does not have the requisite medical expertise to opine as to the etiology of a disability identifiable only by spinal imaging studies. Moreover, while the Veteran is competent to report cervical spine symptomatology during service, which is documented in the service treatment records to the extent he complained of upper back pain, he is not competent to relate such symptomatology to later diagnosed cervical stenosis status post cervical fusion at C2-C7. Finally, as there is no evidence of a cervical spine arthritis until at earliest 1996, approximately 5 years after the Veteran’s separation from service, there is no basis to award service connection for arthritis on a presumptive basis. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, there is no indication that arthritis manifested during service to a sufficient degree to identify the disease to allow for service connection based on recurrence of symptomatology. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In reaching this decision, 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 in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a skin disability. The Veteran is competent to report he experiences a skin rash, and January 1998 VA examination found some evidence of xerosis on the Veteran’s back on physical examination. Thus, element one to establish service connection is met. Regarding element two, in-service incurrence of a disease or injury, the Veteran’s service treatment records are silent for treatment, findings, or diagnosis relating to a skin disability. On January 1998 VA examination, he stated he first noticed a rash at the end of 1991, a few months after he was separated from service, and first sought care for the rash in 1994 and was diagnosed with pityriasis rosacea. In addition, the Veteran is a Persian Gulf veteran, and he was presumed to have suffered environmental exposures. Given this evidence, the second element to establish service connection is met. As to element three, a nexus between the claimed in-service disease or injury and the present disability, the only competent evidence is against the Veteran’s claim. The January 1998 VA examiner opined that it was not believed that any of the claims, including history of pityriasis rosacea with current rash on the back, was related to the Persian Gulf because they can be explained by other problems and by other means. There is no opinion to the contrary. In reaching this decision, 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 in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a disability manifested by memory loss. 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). Based on the competent evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a disability manifested by memory loss, under any theory of entitlement, as there is no indication of a memory impairment disability or memory impairment at any point during the appeal period. The Veteran’s service treatment records are silent for treatment, findings, or diagnosis relating to a memory impairment disability or to memory impairment. To the extent the Veteran may have endorsed memory impairment during the appeal period, which he is competent to report, the record is negative for any evidence of functional impairment of earning capacity due to such memory impairment during the appeal period. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this case, the Board must deny the claim for service connection for a disability manifested by memory loss due to the absence of proof of current disability. In reaching this decision, 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 in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for the cause of the Veteran's death. A veteran’s surviving spouse is eligible for death indemnity compensation (DIC) benefits when a qualifying veteran dies from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). It is the principal cause if it was “the immediate or underlying cause of death or was etiologically related” to the death. 38 C.F.R. § 3.312(b). It is a contributory cause if it “contributed substantially or materially” to the cause of death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c)(1). In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(2), (3). The appellant does not contend, and the evidence does not show, that the Veteran suffered from any of the disabilities that caused or contributed to cause his death listed on his death certificate in service or for many years thereafter, and there is no competent evidence suggesting that such disabilities arose in service or are otherwise related to military service. While the record shows that the Veteran served in the Persian Gulf, service connection cannot be granted on a presumptive basis as due to an undiagnosed illness based on his Persian Gulf service for his disabilities that caused or contributed to cause his death as listed on his death certificate. Hence, the presumptive provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not applicable. At the time of the Veteran’s death, he had not established service connection for any disabilities or diseases. The Board has considered the appellant’s claim and decided entitlement based on the evidence. The appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to the instant claim. 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). There is simply nothing to indicate that any form of X-ray exposure from service caused the Veteran’s death. As such, the weight of the evidence is against the claim and entitlement to service connection for the cause of the Veteran’s death must be denied. The Board is extremely sympathetic to the appellant’s claim and notes the distinguished service of the Veteran. However, the Board is bound by the laws and regulations that apply to veterans’ claims. 38 U.S.C. § 7104(c). 38 C.F.R. §§ 19.5, 20.101(a). Those laws and regulations reflect that a service related disability must have caused or contributed to the Veteran’s death in order to warrant service connection for the cause of death. In this case, the evidence does not reflect the possibility of such a relationship. Consequently, neither a remand nor a medical opinion nor service connection is warranted in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Marley, Counsel