Citation Nr: 20022422 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 12-22 698 DATE: March 31, 2020 ORDER The issue of entitlement to service connection for a post-operative left temporal organic brain disability to include angioma, cavernoma, and arteriovenous malformation (AVM) residuals is dismissed as moot. The issue of entitlement to service connection for a seizure disability is dismissed as moot. Entitlement to service connection for a disability manifested by cognitive dysfunction, due to the service-connected disabilities, is granted. Entitlement to service connection for a disability manifested by weight loss is denied. Entitlement to service connection for a skin disability is denied. FINDINGS OF FACT 1. As service connection for temporal organic brain disability, psychomotor epilepsy with complex partial seizures and temporal lobe seizures has been granted, the issue of entitlement to service connection for a post-operative left temporal organic brain disability to include angioma, cavernoma, and arteriovenous malformation (AVM) residuals is moot. 2. As service connection for temporal organic brain disability, psychomotor epilepsy with complex partial seizures and temporal lobe seizures has been granted, the issue of entitlement to service connection for a seizure disability is moot. 3. The evidence is at least in equipoise regarding whether the Veteran has a disability manifest by cognitive dysfunction that is related to service-connected residuals of a traumatic brain injury (TBI) and service-connected posttraumatic stress disorder (PTSD). 4. The Veteran’s weight loss has not resulted in an impairment of earning capacity, and abnormal weight loss is not itself a disability for VA compensation purposes. 5. The preponderance of the evidence shows that the claimed skin disability, to include rash, is not related to, or was permanently aggravated by, service or service-connected disability. CONCLUSIONS OF LAW 1. The issue of entitlement to service connection for a post-operative left temporal organic brain disability to include angioma, cavernoma, and arteriovenous malformation (AVM) residuals is moot by virtue of the July 2019 Agency of Original Jurisdiction rating decision granting service connection for temporal organic brain disability, psychomotor epilepsy with complex partial seizures and temporal lobe seizures, and there remains no matter in controversy for which the Board has jurisdiction. 38 U.S.C. §§ 7104(a), 7105(d)(5); 38 C.F.R. § 20.101(a). 2. The issue of entitlement to service connection for a seizure disability is moot by virtue of the July 2019 Agency of Original Jurisdiction rating decision granting service connection for temporal organic brain disability, psychomotor epilepsy with complex partial seizures and temporal lobe seizures, and there remains no matter in controversy for which the Board has jurisdiction. 38 U.S.C. §§ 7104(a), 7105(d)(5); 38 C.F.R. § 20.101(a). 3. The criteria for service connection for a disability manifest by cognitive dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for a disability manifested by weight loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303. 5. The criteria for service connection for a skin disability, to include rash, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1990 to September 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision of the San Diego, California, Regional Office of the Department of Veterans Affairs (VA). This case was previously remanded for further development. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the AOJ, the Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that on a VA form 20-0995 submitted in August 2019, the Veteran elected the modernized review system for review of the issues of entitlement to service connection for chronic fatigue syndrome and entitlement to service connection for Gulf War syndrome. Therefore, those two issues will be addressed in a separate decision pursuant to the modernized review system. 38 C.F.R. § 19.2(d). Service Connection In general, service connection may be established for disability or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a),(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service connected disability, which is aggravated by a service-connected disability. In such an instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a post-operative left temporal organic brain disability to include angioma, cavernoma, and arteriovenous malformation (AVM) residuals 2. Entitlement to service connection for a seizure disability The Board finds that these two service connection claims are moot because a July 2019 rating decision established service connection for temporal organic brain disability, psychomotor epilepsy with complex partial seizures and temporal lobe seizures. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). The Veteran’s claims for service connection for post-operative left temporal organic brain disability to include angioma, cavernoma, and arteriovenous malformation (AVM) residuals, and of entitlement to service connection for a seizure disability, have already been granted in full by the July 2019 rating decision which established service connection for temporal organic brain disability, psychomotor epilepsy with complex partial seizures and temporal lobe seizures. Therefore, there is no longer any pending adverse determination for the Board to adjudicate with respect those two service connection claims. Shoen v. Brown, 6 Vet. App. 456 (1994). The appeal on the merits of the claims of entitlement to service connection for post-operative left temporal organic brain disability to include angioma, cavernoma, and arteriovenous malformation (AVM) residuals and entitlement to service connection for a seizure disability are moot by virtue of the prior grant of service connection for temporal organic brain disability, psychomotor epilepsy with complex partial seizures and temporal lobe seizures, and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Entitlement to service connection for a disability manifested by cognitive dysfunction During the course of the appeal, service connection for posttraumatic stress disorder was established by a June 2012 Decision Review Officer decision. Service connection for residuals of a traumatic brain injury was established by a November 2017 Board decision. A July 2019 rating decision established service connection for temporal organic brain disability, psychomotor epilepsy with complex partial seizures and temporal lobe seizures. The Board remanded this issue to obtain a VA examiner’s opinion regarding any possible connection between any disability manifested by cognitive dysfunction and the service-connected disabilities. A March 2019 VA psychiatric examiner opined that it was at least as likely as not that the Veteran’s PTSD had some impact on the cognitive dysfunction in that it was one of several contributing factors, which included his medical conditions and his psychosis, that impaired concentration, attention, and memory. The examiner stated that the level of the Veteran’s intrusive symptoms impacted the ability to sustain focused attention. The examiner also concluded that it was not within the scope of his practice to give an opinion on the relative contribution of any medical conditions or medications to the Veteran’s cognitive dysfunction, and he felt that the Veteran should be referred to a neurologist. A March 2019 VA examination was performed by a medical doctor. That examiner indicated that the Veteran had a diagnosis of brain dysfunction, including cognitive impairment, seizure disorder, and chronic headaches secondary to AVM bleed and craniotomy. The examiner recognized that there was some overlap of symptoms of the cognitive dysfunction, AVM bleed, traumatic brain injury, and PTSD. The examiner opined that it was likely that with the overlap of symptoms, the TBI was at least as likely caused or aggravated the Veteran’s cognitive disorder. Based on all the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a disability manifest by a cognitive disorder secondary to a service-connected disability. The March 2019 VA examiners gave details regarding the examination results and observations. The examiners also cited to the medical evidence and lay statements to support the given opinions. Taken as a whole, the evidence is at least in equipoise regarding whether the currently diagnosed cognitive disorder was caused by service-connected disabilities. Accordingly, the Board will resolve reasonable doubt in favor of the Veteran and find that entitlement to service connection for a cognitive disorder, due to the service connected disabilities, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107. 4. Entitlement to service connection for a disability manifested by weight loss After review of all the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran currently has a disability manifested by weight loss for VA compensation purposes. The Veteran states that he has experienced weight loss. However, the evidence does not show any currently diagnosed disability or medical findings of disability that would constitute a disability for which service connection could be established. While the record shows evidence of weight loss, the record does not show any diagnosed disability underlying the weight loss. On VA examination in March 2019, the examiner stated that the Veteran’s weight loss was a symptom, not a diagnosis. The examiner stated that there was no diagnosis because there was no pathology to make a diagnosis. Under applicable regulations, the term disability means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may not be established for symptoms unaccompanied by a diagnosed disability. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In the absence of a diagnosis of a current disability, or any abnormality which is attributable to some identifiable disease or injury during service, an award of service connection is not warranted. The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Because there was no actual disability diagnosed at any time since the claim was filed or contemporary to the filing of the claim, no valid claim for service connection for a disability manifest by weight loss exists. As the preponderance of the evidence is against the claim for service connection for a disability manifest by weight loss, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for a skin disability to include a rash The service medical records do not show any signs, symptoms, or treatment for a rash. At a July 1994 service separation examination, the skin examination was normal. On a July 1994 report of medical history, the Veteran indicated that he did not have, nor had he ever had, any skin diseases. At a April 2017 hearing, the Veteran said that sometimes he experienced a heat rash, but that it was intermittent. He stated that he had been given an ointment by VA medical personnel for the rash. On VA examination in March 2019, the examiner opined that the Veteran’s skin disability was less likely than not incurred in or caused by his service. The examiner confirmed that the Veteran had a current diagnosis of folliculitis, and a VA treatment record from April 2018 showed that the Veteran had a rash. The examiner stated that an extensive review of the Veteran’s medical records was negative for an extended history of a skin disability. The examiner stated that no medical literature suggested a relationship of skin folliculitis with a head injury, and the only documented treatment for folliculitis was in 2018. The examiner further noted that the service medical records did not show treatment for a skin disability, and the Veteran had no known pathology to be related to any incident in service or residual of a TBI. The examiner stated that the Veteran had no documented skin reaction to prescribed medication or treatment. The examiner also stated that the folliculitis was likely caused by bacteria at the hair follicle. The evidence shows that the Veteran has a current diagnosis of folliculitis. However, the Board finds that the preponderance of the evidence is against a finding of a relationship between that current diagnosis and service or any service-connected disability. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran’s lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The lay statements describing the Veteran’s intermittent rash are competent and credible. The March 2019 VA examiner opined that the Veteran’s folliculitis was less likely than not related to the Veteran’s service or any service-connected disabilities. The Board finds the March 2019 VA examiner’s opinions to be more probative than the Veteran’s assertions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinion of the VA examiner is highly probative because it was supported by detailed rationale and provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and his rash. In particular, the examiner discussed the service medical records and post-service treatment. The examiner considered the lay statements. Accordingly, the March 2019 VA examiner’s opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Veteran has not submitted any medical evidence to support the contention that his rash is related to service or to his service-connected disabilities. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. No causal connection between the Veteran’s service or the other service-connected disabilities and the intermittent rash is demonstrated by the competent evidence of record. The Board is sympathetic to the Veteran in that it is clear he sincerely believes that the claimed skin disability was caused by service. However, the weight of the persuasive evidence of record does not support that contention. The Board finds that the March 2019 VA examiner’s opinion is the most persuasive evidence in this case. The Board is appreciative of the Veteran’s faithful and honorable service to our country. However, because the preponderance of the evidence is against the claim, the claim must be denied. As the preponderance of the evidence is against the claims of entitlement to service connection for a skin disability to include a rash, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.