Citation Nr: 19114635 Decision Date: 02/27/19 Archive Date: 02/27/19 DOCKET NO. 15-26 188 DATE: February 27, 2019 ORDER Entitlement to service connection for cardiomegaly is dismissed. Entitlement to service connection for hepatosplenomegaly is dismissed. Entitlement to service connection for a deviated septum is dismissed. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an acquired psychiatric disability, to include depression, is granted. Entitlement to service connection for allergic rhinitis is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for varicocele is granted. Entitlement to service connection for a skin disability, to include eczema and cellulitis, is granted. Entitlement to service connection for a gastrointestinal disability, including gastroesophageal reflux disorder (GERD) and diverticulosis, is granted. Entitlement to service connection for chronic fatigue syndrome is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a skin disorder/scar on the forehead is remanded. FINDINGS OF FACT 1. In a December 2016 statement, the Veteran specifically withdrew the issues of entitlement to service connection for cardiomegaly, hepatosplenomegaly, and a deviated septum. 2. The Veteran’s reported tinnitus is related to his active service. 3. The Veteran’s acquired psychiatric disability is related to his active military service. 4. The Veteran’s allergic rhinitis is related to his active service. 5. The Veteran’s hypertension is related to his active service. 6. The Veteran’s varicocele is related to his active service. 7. The Veteran’s skin disability is related to his active service. 8. The Veteran’s gastrointestinal disability is related to his active service. 9. There is no competent evidence that the Veteran has chronic fatigue syndrome. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran of the issues of entitlement to service connection for cardiomegaly, hepatosplenomegaly, and a deviated septum have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. 3. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. 4. The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. 5. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. 6. The criteria for service connection for varicocele have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. 7. The criteria for service connection for a skin disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. 8. The criteria for service connection for a gastrointestinal disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.159, 3.303. 9. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 1117, 1118, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 through February 1991, June 1999 through March 2000, February 2006 through November 2006, and January 2008 through October 2008. Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or in testimony at a hearing. 38 C.F.R. § 20.204. In this case, the appellant in a statement in December 2016 withdrew the issues of entitlement to service connection for cardiomegaly, hepatosplenomegaly, and a deviated septum. Therefore, there remain no allegations of errors of fact or law for appellate consideration as it relates to these claims. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues, and they are dismissed without prejudice. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus was caused by his active military service. The Board concludes that the Veteran has current tinnitus that is related to his active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has reported subjective tinnitus. The Veteran has been deployed to imminent danger pay areas in the Southwest Asia theater of operations. Therefore, noise exposure is acknowledged. The only question left to answer is whether there is evidence showing a causal relationship between the Veteran’s in-service noise exposure and his current tinnitus. Upon review, the Board finds that there is. The Board acknowledges that there is a VA medical opinion against the claim. However, based upon the Veteran’s credible testimony on his onset and continuity of symptomatology, the Board finds that there is a nexus between his current tinnitus and his active military service. Given this credible testimony, the Board finds that the evidence is at least in equipoise as to the element of causal relationship. As such, the Board finds that service connection for tinnitus is warranted. 2. Entitlement to service connection for an acquired psychiatric disability The Veteran’s claim for entitlement to service connection for depression has been recharacterized as a claim for an acquired psychiatric disability because his VA treatment records show a diagnosis of another acquired psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Veteran’s VA treatment records show that he is diagnosed with Generalized Anxiety Disorder and depression. In his May 2009 post-deployment health re-assessment, the Veteran reported psychiatric symptoms due to his experiences in Southwest Asia. Given the Veteran’s in-service experiences, report of psychiatric symptoms immediately following deployment and his current psychiatric diagnosis, service connection for an acquired psychiatric disability is granted. 3. Entitlement to service connection for allergic rhinitis The Veteran’s VA treatment records show that he is diagnosed with allergic rhinitis. In his September 2006 post-deployment health re-assessment, the Veteran reported chronic cough, runny nose, and headaches during service. These are the same symptoms that the Veteran reports in his VA treatment records for his allergic rhinitis. Given the Veteran’s report of allergic rhinitis symptoms immediately following service and his current allergic rhinitis diagnosis, service connection for an allergic rhinitis is granted. 4. Entitlement to service connection for hypertension The Veteran was afforded a VA medical examination for his claimed hypertension in October 2012. The examiner noted that the Veteran was diagnosed with hypertension in August 2011. The examiner noted that during his deployment the Veteran had elevated blood pressure readings with a five-day blood pressure check and was found to not be hypertensive. The VA examiner gave a very short conclusory opinion that the Veteran’s hypertension was not due to active military service. The Veteran’s service treatment records show elevated blood pressure ratings that necessitated a five-day blood pressure check. Additionally, his VA treatment records show that he had additional hypertensive blood pressure readings in September 2009, within one year of separation from service. The Veteran’s VA treatment records show that his blood pressure readings continue in this manner until his formal hypertension diagnosis in August 2011. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. Under the “benefit-of-the-doubt” rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). Resolving the benefit-of-the-doubt in favor of the Veteran, his hypertension began in service. Service connection for hypertension is granted. 5. Entitlement to service connection for varicocele The Veteran’s separation examination in November 1990 noted that the Veteran had a left varicocele. His VA treatment records in May 2010 have a CT scan that shows the Veteran has a varicocele. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. Under the “benefit-of-the-doubt” rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). Resolving the benefit-of-the-doubt in favor of the Veteran, his varicocele began in service. Service connection for varicocele is granted. 6. Entitlement to service connection for a skin disability, to include eczema and cellulitis The Veteran’s claims for entitlement to service connection for eczema and cellulitis have been recharacterized as a claim for a skin disability because his VA treatment records show a diagnosis of another skin disability. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Veteran’s VA treatment records show a diagnosis of eczema and psoriasis. The Veteran’s service treatment records show that he complained of a rash on his feet, legs, and chest in December 1985. He was diagnosed with tinea pedis and tinea cruris and prescribed tinactin powder. In 1988 he was treated for sores in his groin and given antibiotics. The Veteran has stated that his rashes have continued in the same way since active military service. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. Under the “benefit-of-the-doubt” rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). Resolving the benefit-of-the-doubt in favor of the Veteran, his skin disability began in service. Service connection for a skin disability is granted. 7. Entitlement to service connection for a gastrointestinal disability, to include GERD and diverticulosis The Veteran’s claims for entitlement to service connection for GERD and diverticulosis have been recharacterized as a claim for a gastrointestinal disability because his VA treatment records show a diagnosis of another gastrointestinal disability. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Veteran’s VA treatment records show diagnoses of hiatal hernia and diverticulosis. The Veteran was afforded a VA medical examination in October 2012. He was diagnosed with a hiatal hernia. The examiner noted that within a year of separation from active service the Veteran noticed pain in the upper chest. The Veteran reported that he had noticed this same pain in his upper chest during active service. The Veteran was placed on prescription medication to manage his condition. The examiner gave a very short conclusory opinion that the Veteran’s hiatal hernia was not due to active military service. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. Under the “benefit-of-the-doubt” rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). Resolving the benefit-of-the-doubt in favor of the Veteran, his hiatal hernia began in service. Service connection for a gastrointestinal disability is granted. 8. Entitlement to service connection for chronic fatigue syndrome The Veteran was afforded a VA medical examination in October 2012. The examination did not show a diagnosis of chronic fatigue syndrome. The examiner stated that the Veteran did not meet the criteria for chronic fatigue syndrome. The examiner noted the Veteran’s diagnoses of depression, sleep apnea with intolerance for C-PAP, leukocytosis with hematology consult, and a history of anemia that is resolved. The Veteran’s treatment records do not show any diagnosis of chronic fatigue syndrome. Nothing in the Veteran’s claims file shows competent medical evidence of chronic fatigue syndrome. While the Veteran is competent to report symptoms, he is not competent to provide a medical diagnosis or to opine on the etiology of his symptoms. In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Service connection is denied, as there is no competent evidence that the Veteran has chronic fatigue syndrome, that the Veteran suffered from this disability while on active duty, and there is no competent evidence linking this disability to service. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to compensation under 38 U.S.C. § 1151 for a skin disorder/scar on the forehead. A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability ... were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361(c). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of “hospital care, medical or surgical treatment, or examination” furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). Thus, 38 U.S.C. § 1151 contains two causation elements - an additional disability must not only be “caused by” the hospital care or medical treatment received from VA, but also must be “proximate[ly] cause[d]” by the VA’s “fault” or an unforeseen “event.” 38 U.S.C. § 1151(a)(1). The Veteran asserts that he has a skin disorder or scar on his forehead that is due to care by the VA. He will be afforded a VA medical opinion in order to determine whether there is medical evidence of this disability due to VA care. The matters are REMANDED for the following action: Arrange for the Veteran’s claims file to be reviewed by an examiner to determine whether the Veteran has a skin disorder or scar on his forehead due to VA care. If the examiner determines it is necessary, schedule the Veteran for a VA medical examination in connection with this claim. The claims file, including a complete copy of this remand must be provided for the examiner’s review of the relevant history, including especially of the treatment in question, and the examiner must indicate he/she did in fact review the file. The examiner must specifically address whether the Veteran has any skin disorder or scar on his forehead that is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The examiner should discuss what procedures have been performed at VA regarding the Veteran’s forehead, any complications that developed as a result of any procedures, explain why the complications were foreseeable (or unforeseeable), and discuss the subsequent treatment and why it was deemed appropriate. Also relevant is whether the Veteran provided his informed consent to any procedures performed to his forehead. It is most essential the examiner provide explanatory rationale for the opinion, with specific reference to the evidence of record where appropriate, including VA treatment records. If an opinion cannot be provided, the examiner should so state and explain why this is so. In addition, the examiner should state whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge, there are multiple possible etiologies, with none more prevalent than another, or whatever may be the case. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke