Citation Nr: 20002476 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 11-14 629 DATE: January 10, 2020 ORDER Service connection for deviated septum is denied. Service connection for skin rash is granted. REMANDED Entitlement to service connection for bilateral hand tremors, to include tenosynovitis of the hand with ulnar neuropathy or scapholunate ligament disruption, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s current deviated septum disability began during active service or is otherwise related to an in-service injury or disease. 2. The competent evidence is at least in equipoise as to whether the Veteran’s current skin rash is related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a deviated septum have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for skin rash have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2003 to October 2006. He is a combat Veteran with service in Iraq from September 2005 to September 2006. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a Travel Board hearing in Chicago, Illinois before the undersigned Veterans Law Judge. The transcript of that hearing is of record. In September 2018, the Board remanded the case for further development. The Board finds that the remand directives were not substantially complied with regarding the issue of hand tremors, therefore another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Here, the Veteran had qualifying service in Southwest Asia. See 38 U.S.C. § 1117 (f); 38 C.F.R. § 3.317(d); 04/17/2015 Certificate of Release or Discharge from Active Duty. A "qualifying chronic disability" means a chronic disability resulting from: an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders). 38 C.F.R. § 3.317 (a)(2)(i). Chronic in this context is defined as existing for six months or more and/or exhibiting intermittent episodes of improvement and worsening over a six-month period. See 38 C.F.R. § 3.317 (a)(4). In particular, the term medically unexplained chronic multisymptom illness (MUCMI) means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317 (a)(2)(ii). Therefore, even if a multisymptom illness has a diagnosis, consideration should still be given as to whether the disability has no known etiology, or has a known, partially understood etiology. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id. Signs or symptoms which may be manifestations of undiagnosed illness or MUCMI include, but are not limited to fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 1. Entitlement to service connection for a deviated septum. The Veteran contends that his deviated septum was caused by his active military service. In August 2019, a VA examiner diagnosed deviated nasal septum. Thus, the first element of a service connection claim, a current diagnosis, has been met. During a March 2018 Travel Board hearing, the Veteran testified that while he was deployed in Iraq an improvised explosive device (IED) blast caused him to hit his head on the side of the vehicle and pushed his Kevlar down upon the bridge of his nose. The Board finds the testimony is consistent with the places, types and circumstances of service in Iraq. 38 C.F.R. § 3.303(a). Thus, the second element of a service connection claim, an in-service incurrence, has been met. Based on the above, the record demonstrates both current disability and an in-service incurrence. The remaining question for consideration is whether the current diagnosed deviated septum is at least as likely as not attributable to his active military service. The Veteran’s March 2003 entrance examination and Accompanying Report of Medical History showed no nasal abnormalities. During service there were no complaints, treatment or a diagnosis for a nasal condition. The Board notes in-service medical treatment in May 2005 where the Veteran sought treatment for a back injury related to boxing; however, at the time of treatment he did not indicate a nose injury related to the boxing incident. Further, an August 2006 Pre-Deployment Health Assessment does not indicate nasal abnormalities. The file does not contain a discharge examination; however, a September 2006 Pre-Separation Counseling Checklist reveals prior to discharge the Veteran declined post-discharge health insurance. The checklist reveals on topic number 14, “Health and Life Insurance,” the Veteran declined the opportunity to purchase 18-month conversion health insurance or pre-existing condition coverage. The Board notes that during the March 2018 Travel Board hearing the Veteran testified that his discharge was rather abrupt after he was involuntarily extended on active duty until October 2006. Following service, there are no indications of treatment at the VA or private doctors related to the Veteran’s deviated septum. As noted above, the Veteran testified at a March 2018 Travel Board hearing. He asserted that during his deployment to Iraq an IED explosion caused his Kevlar helmet to push down on his head hitting the bridge of his nose. In April 2018, a fellow service member, JD, provided two statements regarding the Veteran’s service in Iraq. In particular, he detailed an incident involving an IED explosion while the Veteran and JD were on patrol. JD stated the explosion lifted the vehicle in the air and demolished the vehicle. After the incident upon returning to base the Veteran nor JD were treated by base medical personnel. In August 2019, the Veteran was afforded a VA examination to determine the etiology of his deviated septum. The VA examiner diagnosed deviated nasal septum; however, the examiner concluded the diagnosis was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner’s conclusion was based on an imaging study of the nasal bone conducted during the examination. The imaging study found no depressed nasal bone fracture or overlying soft tissue swelling in addition to a mild deviation of the nasal septum to the left. The examiner opined that the radiological study of the nasal bones failed to reveal nasal bone fracture or overlying soft tissue swelling or other residual, sequela or complication consistent with nasal trauma/injury of an old fracture. The examiner further noted a review of the medical history during service and after service did not record evaluation or complaints of nasal septum deviation. Additionally, a review of medical literature did not support a finding that a deviated septum issue could be related to service in Southwest Asia. Based on the competent lay and medical evidence above, the Board finds that the current deviated septum issue is not related to the active military service. The Board acknowledges the Veteran’s assertions that his deviated septum disability is related to his military service. The Board finds him competent to report his assertions. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In particular, the Board notes the Veteran’s testimony at the March 2018 Travel Board hearing, which was consistent with the statement provided by his fellow servicemember, JD, regarding an IED explosion during his active military service. The Board also notes the Veteran annotated an in-service boxing incident when he perfected his appeal in May 2018. In this particular instance, the Board finds the competent medical evidence of record carries the greatest weight. Here, the record does not indicate that the Veteran sought treatment for his deviated septum during service. Moreover, the record reflects the Veteran did indeed seek treatment after a boxing incident in service in May 2005. He sought medical treatment for his back; however, he did not mention any injury associated with his nasal cavity at the time of treatment. As noted above, although he did not receive a discharge examination; he was provided an opportunity to receive medical insurance prior to separation as recorded on his September 2006 Pre-Separation Checklist, which he declined. The Board finds that the Veteran’s declining medical insurance at separation is an indication that no chronic condition occurred during his active military service and a factor that tends to weigh against the claim. Furthermore, post-service, the evidence of record does not show that the Veteran sought treatment for his deviated septum. The Board notes that he testified at the March 2018 Travel Board hearing that he indeed sought medical treatment for his nose; however, this is not supported by the competent medical evidence of record. The Board finds that, in this case, the determination of the origin of the deviated septum disability is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The condition here involves a pathological process that is not readily observable to a layperson involving human anatomy. The Board finds that in light of the non-observable nature of the pathology, the issue of origin of the diagnosed condition is a medical question requiring medical training, expertise, and experience. In this regard, the record does not reflect that the Veteran has the skills, training, and/or education to provide a competent opinion regarding the etiology of his current nasal septum disability. As such, the Board finds his statements in this regard lack weight. On the other hand, the August 2019 VA examiner conducted an imaging study that did not reveal a nasal bone fracture or overlying soft tissue swelling or other residual, sequela or complication consistent with nasal trauma/injury of an old fracture. Moreover, the August 2019 VA examiner has provided a thorough examination report after a physical examination that considered the Veteran’s lay statements and provided a sufficient rationale for the Board to evaluate the claim. In particular the VA examiner, completed and analyzed diagnostic studies and concluded based on their knowledge and experience as a physician that there was no nasal bone fracture or overlying soft tissue swelling or other residual, sequela, or complication consistent with nasal trauma/injury/old fracture. Based on these factors, the Board gives great weight to VA examiner’s opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In sum, the Veteran has a current disability and an in-service incident regarding his deviated septum, however there is not a nexus between the current disability and military service. The preponderance of the evidence weighs against a finding for service connection for the deviated septum. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.F.R. § 3.102. 2. Entitlement to service connection for skin rash. The Veteran contends that his skin rash is related to his active military service. A VA examiner in August 2019, diagnosed tinea versicolor. As such, the first element of a service connection claim, a current diagnosis, has been met. The Veteran’s girlfriend submitted a statement in October 2012, which asserted that upon returning from his deployment in Iraq, the Veteran was covered with water-blisters covering his body. The sores were transferred to her and she sought treatment from a dermatologist. Additionally, the Board notes that the Veteran sought treatment for a skin rash in November 2006, which was two months after his return from Iraq. His DD 214 reflects service in Iraq from September 2005 to September 2006. The Board finds the brief period of only two months following his return from Iraq and the outbreak of a skin rash are potentially indicative of an in-service incident, that could have caused the rash. As such, the second element of a service connection claim, an in-service incident, has been met based on competent and credible lay evidence. As now discussed, the competent evidence of record demonstrates both current disability and an in-service incurrence. The remaining question for consideration is whether the current diagnosed tinea versicolor is at least as likely as not attributable to his military service. The Veteran’s March 2003 entrance examination and Accompanying Report of Medical History showed no skin abnormalities. During service there were no complaints, treatment or a diagnosis related to a skin condition. As noted above, there was no discharge examination. Following service, in November 2006, VA Treatment records reveal the Veteran experienced a rash across his torso and bilateral arms. He was subsequently diagnosed with tinea versicolor in September 2008. As noted above, the Veteran’s girlfriend provided a statement in October 2012 stating that her boyfriend returned from Iraq with water-blisters covering his body. The sores transferred to her and she sought treatment with a dermatologist. In March 2018, the Veteran testified at a Travel Board hearing. He asserted that the rash began in Iraq. He observed ring worms all over his body. Moreover, he stated he experienced no skin irritation issues prior to his active military service. Following service, the condition had been on-going. In August 2019, the Veteran was afforded a VA examination to determine the etiology of his skin rash. Upon physical examination, the examiner recorded the Veteran had a current skin condition without visible characteristic lesions at the time of the examination. The examiner diagnosed tinea versicolor. The 2019 VA examiner opined that the condition was less likely than not caused by his active military service. The rationale was based on a review of the in-service medical history, an interview with the Veteran, and medical research in text and online. The examiner annotated that a skin test in December 2011 diagnosed the condition and the Veteran had not sought treatment in-service. Moreover, the examiner opined that there was no evidence in the medical literature that established a relationship between the Veteran’s tinea versicolor and specific exposure to events experienced in Southwest Asia. Based on the competent lay and medical evidence above, the Board finds that the evidence of record is in equipoise regarding the skin rash claim. Although the August 2019 VA examiner did not find a nexus between the current skin rash and military service, the Board notes there is competent probative lay and medical evidence to support a contrary opinion. In particular, the October 2012 statement from the Veteran’s girlfriend annotated that the rashes began after her boyfriend’s deployment to Iraq; which is corroborated by the Veteran’s March 2018 Travel Board testimony, where he asserted, he did not have skin rashes prior to his deployment. Moreover, during his testimony he asserted the skin rashes began while he was deployed to Iraq, but he did not seek treatment immediately due to the operational tempo during the deployment. Additionally, the Veteran first sought treatment for the skin rash in November 2006, which was two months after he returned from Iraq. The Board also notes the Veteran’s March 2003 entrance examination does not annotate a skin condition. The entrance examination is three years prior to his deployment to Iraq and there is no indication in the probative medical history record prior to his Iraq deployment that he experienced any sort of skin rash. Thus, the Board finds that the competent and credible evidence tends to show a reasonable inference that his skin rash began during his active military service notwithstanding the August 2019 VA examiner’s opinion. Thus, the Board finds that the competent evidence of record is in balance regarding this material issue. 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. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Therefore, a grant of service connection is warranted for this issue. REASONS FOR REMAND Entitlement to service connection for bilateral hand tremors, to include tenosynovitis of the hand with ulnar neuropathy or scapholunate ligament disruption is remanded. The March 2018 Board decision remanded the bilateral hand tremor issue for a VA examination to determine the etiology of the condition. In August 2019, a VA examiner determined there was no diagnosis of hand tremors in the evidence of record. As such, there was no current diagnosis in the medical evidence of record to support a service connection claim. The Board finds the August 2019 VA examination report is incomplete. The Board notes that the scope of a claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (noting that a claimant’s identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (stating that it is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability). Here, the September 2018 Board decision directed a VA examination to specifically address a February 2012 diagnosis of tenosynovitis of the hand and wrist with ulnar neuropathy. In addition, the Board directed an opinion be obtained as to whether or not mental health issues specifically related to the Veteran’s service-connected posttraumatic stress disorder (PTSD) could have caused or aggravated the Veteran’s alleged hand tremors. Such was not accomplished as it was stated the Veteran did not have a diagnosis of hand tremors. The Board also notes after an additional review of the medical evidence of record; in February 2012, VA treatment records show a diagnosis of scapholunate ligament disruption of the hand and wrist in addition to some osteoarthritis. The VA treatment records annotated the ligament disruption was causing numbness. The Board finds a medical opinion regarding this would be useful to adjudication of the matter. The Board finds the record indicates other diagnoses that could reasonably encompass the Veteran’s assertions regarding his claimed hand tremors. As such, the Veteran’s claim has been recharacterized regarding his hand tremor claim to include tenosynovitis of the hand with ulnar neuropathy or scapholunate ligament disruption, as reflected on the title page of this decision. Additionally, updated VA treatment records should be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.) This matter is REMANDED for the following actions: 1. Update/Obtain VA treatment records from August 2018 to the present. Document all requests for information as well as responses in the claims file. 2. After completion of step #1, provide a copy of the claims file to the VA examiner who conducted the August 2018 VA examination and request an addendum opinion. If that examiner is not available, then the Veteran should be scheduled with another appropriate examiner to determine the nature and etiology of his hand tremors, to include tenosynovitis of the hand with ulnar neuropathy or scapholunate ligament disruption. The examiner is to review the entire claims file and is to note such review in the examination report. Regardless of who offers the opinion, the examiner is to address the following: (a.) The February 2012 diagnosis of tenosynovitis of the hand and wrist with ulnar neuropathy. See February 27, 2012, CAPRI. (b.) The February 2012 diagnosis of scapholunate ligament disruption with some osteoarthritis of the hand and wrist. See February 28, 2012, CAPRI. (c.) Whether it is at least likely as not that the Veteran’s service-connected PTSD is the proximate cause or aggravated his hand tremors. (d.) Whether it is at least likely as not that the Veteran’s hand tremors or other neurological condition causing tremors are related to his active military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.M. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.