Citation Nr: 20021150 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-47 828 DATE: March 24, 2020 ORDER Entitlement to service connection for a stomach condition is denied. Entitlement to service connection for a skin rash is denied. FINDINGS OF FACT 1. A stomach condition is not shown to have begun during active service, or to be causally or etiologically related to any disease, injury, or incident in service. 2. A skin rash is not shown to have begun during active service, or to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a stomach condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a skin rash have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1952 to February 1956. In October 2018 the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February and November 2019, the Board remanded the claims on appeal for further development and adjudication. The Board finds that there was substantial compliance with its February and November 2019 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R.§ 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for a stomach condition and a skin rash are denied. The Veteran contends that he suffers from a stomach condition and a rash as a result of his active duty service. Specifically, he alleges that he was diagnosed with Rheumatic Fever (RF) during his service and that such caused his stomach problems and rash which began during service and have continued since. The Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of a stomach condition or a rash. However, they do reflect that the Veteran was diagnosed with and treated for RF in 1952. The treatment notes reflect no mention of any associated rash or gastrointestinal complaints. In addition, it appears that the Veteran recovered from his RF, as follow up notes reflect he was in good health and asymptomatic. The Veteran’s separation examination in 1956 noted no health problems or complaints. The Veteran’s post-service treatment records are silent for any complaints or treatment for a stomach condition or a rash for many years following service discharge. However, private treatment records reflect that in 2007 following a colonoscopy, the Veteran was diagnosed with colon polyps, diverticulosis and hemorrhoids. Furthermore, private dermatological records reflect that the Veteran was treated for seborrheic dermatitis. However, they do not include any etiological opinions nor do they provide a link to the Veteran’s active duty service or his RF. In September 2011 the Veteran underwent several VA examinations, to include several joint examinations as well as examinations for his claimed stomach and rash conditions. The Veteran noted that he had had RF in service but that his symptoms consisted of a fever and swelling in his right knee. He reported that his condition was treated and that he did not have any recurrence. The Veteran denied any stomach problems and the examiner found that any stomach condition the Veteran may have was not caused by, or a result of, or aggravated by his rheumatic fever in service. The examiner provided the rationale that RF does not cause any chronic stomach conditions or disabilities and that the examiner could find no evidence of a current stomach condition or a stomach condition in service. The examiner noted that the Veteran complained of dry skin for about 30 years, but that he left the service approximately 50 years prior. The examiner opined that any dry skin that the Veteran may have was not caused by, or a result of, or aggravated by his RF in service. The examiner provided the rationale that RF does not cause dry skin and that he could not find any evidence of dry skin in service. However, in the Board’s February 2019 decision and remand, the Board found the September 2011 opinion to lack adequate reasoning and rationale. Therefore, the Board found it inadequate for adjudication purposes and remanded for an addendum opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In July 2019 an addendum opinion was obtained. The examiner opined that after reviewing the Veteran’s records and the September 2011 examination, that he did not find any evidence of a chronic skin condition or stomach condition which could have been caused or aggravated by the Veteran’s history of RF in service. However, in a November 2019 decision, the Board again found the July 2019 opinion to be inadequate as it was “even more conclusory and inadequate than the opinion offered in September 2011.” Therefore, the Board again requested an addendum opinion. In November 2019 another addendum opinion was obtained. The examiner again noted that he did not find evidence of any chronic skin or stomach conditions which could have been caused or aggravated by the Veteran’s in-service RF. The examiner noted that his opinion was based on the September 2011 examination and that he had nothing to add. He further noted that if a new examination was needed that a different examiner should conduct it. As the November 2019 opinion is merely a restatement of the July 2019 opinion, which has already been found inadequate, the Board finds that the November 2019 opinion is also inadequate for adjudication purposes. However, in January 2020 the Veteran underwent additional VA examinations with accompanying disability benefits questionnaires (DBQs). During the Stomach and Duodenal Conditions examination, the examiner noted that the Veteran had RF in 1952, which was treated and that there was no mention of any gastrointestinal conditions in service. The Veteran reported that his stomach problems are due to his colon polyps. The examiner reviewed the Veteran’s prior colonoscopies but noted no stomach/duodenal diagnoses were warranted. The examiner found that the Veteran did not have any stomach or duodenum conditions. During the Skin Conditions examination, the examiner noted that the Veteran had RF in 1952, which was treated and that there was no mention of any skin rash in service. The examiner noted that the Veteran had seborrheic dermatitis and dry skin which was diagnosed in 2014. The January 2020 VA examiner provided the opinion that the Veteran’s claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner provided the rationale that while the record noted that the Veteran was treated for RF in 1952, at the time there was no mention of any rash or gastrointestinal complaints. The Veteran recovered from his RF without any medical deficits referable to the skin or gastrointestinal tract. The Veteran’s colon polyps are not a result of his RF as RF does not affect the colon. Similarly, the rash that the Veteran describes is not a rash seen with RF. RF is a limited disease and one would not expect gastrointestinal or skin diseases later. The examiner stated that it “simply does not stand to reason, based on common medical knowledge, that the episode of RF in 1952 would cause the skin or gastrointestinal conditions claimed.” Therefore, the examiner stated that the Veteran’s diagnosed seborrheic dermatitis, claimed as a skin rash, is less likely than not incurred in or caused by the Veteran’s RF in service; and for the Veteran’s claimed stomach condition, for which no diagnosis is warranted, such is also less likely than not caused by or related to RF in service. Throughout the appeal the Veteran has provided lay statements in support of his claims. The Veteran during his October 2018 Board hearing testified that his claimed skin and stomach conditions were caused by his RF as they began during service after he was diagnosed with and treated for RF. Furthermore, he indicated that such conditions continued since service. The Board notes that the Veteran has a current diagnosis or history of seborrheic dermatitis and colon polyps; therefore, the first element of service connection, whether for direct or presumptive service connection, is met. As for presumptive service connection and service connection based on continuity of symptomatology, seborrheic dermatitis and colon polyps are not chronic diseases subject to such forms of service connection. 38 C.F.R. §§ 3.303, 3.307, 3.309. Furthermore, there is no indication of any continuity of treatment in the medical record. Therefore, presumptive service connection or service connection based on continuity of symptomatology is not warranted. As for direct service connection, the Board notes that while the Veteran’s service treatment records reflect that he suffered from RF in service, such appears to have been treated and resolved. In addition, the Veteran did not exhibit symptoms of or was diagnosed with any stomach or skin conditions, within one year of service discharge. Rather the Veteran was not diagnosed with colon polyps until 2007 and seborrheic dermatitis until 2014, several years after his discharge from service. However, the Board notes that in the light most favorable to the Veteran, the in-service element of direct service connection is met. However, as for the nexus element of direct service connection, the January 2020 VA examiner found that the Veteran’s skin rash and claimed stomach condition were less likely than not the result of or aggravated by his RF in service. As the examiner supported his conclusion with adequate reasoning and rationale, the Board finds it probative. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. Furthermore, there is no contrary opinion of record. As the Veteran is missing an essential element of direct service connection, direct service connection is not warranted. The Board has also considered the lay statements that the Veteran provided, which indicated that his disabilities were related to his military service. In this regard, a layperson is competent to report on that of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the question of causation of skin and stomach conditions involves medical subjects concerning internal physical processes extending beyond an immediately observable cause-and-effect relationship. In this regard, such opinions require specialized knowledge of the gastrointestinal and dermatological systems. There is no indication that the Veteran possesses such specialized knowledge. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the lay opinions regarding the etiology of the Veteran’s claimed skin and stomach conditions are non-probative evidence. See Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Moreover, the Veteran has offered only conclusory statements regarding the relationship between his claimed skin and stomach conditions and his active duty service, to include his in-service RF. In contrast, the January 2020 VA examiner took into consideration all the relevant facts in providing his opinions. Therefore, the Board accords great probative weight to the VA examiner’s opinions. Consequently, the Board finds that the Veteran’s claimed skin and stomach conditions are not shown to be causally or etiologically related to a disease or injury incurred in or aggravated during active service. Therefore, service connection for such claimed disabilities is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for skin and stomach conditions. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.