Citation Nr: 20032494 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 18-00 283 DATE: May 8, 2020 ORDER The appeal for service connection for lupus is denied. The appeal for service connection for hypertension is denied. The appeal for service connection for a skin disorder is denied. REMANDED The appeal for service connection for right hand arthritis is remanded. The appeal for service connection for a right wrist disorder (claimed as carpal tunnel syndrome in the right upper extremity) is remanded. The appeal for service connection for a right knee disorder is remanded. The appeal for service connection for a left knee disorder is remanded. The appeal for service connection for a left ankle disorder is remanded. The appeal for service connection for a right ankle disorder is remanded. The appeal for service connection for a cervical spine disorder is remanded. The appeal for service connection for a thyroid disorder is remanded. The appeal for service connection for left foot plantar fasciitis is remanded. The appeal for service connection for a sinus disorder is remanded. The appeal for service connection for gallbladder removal, residuals, and scar is remanded. The appeal for service connection for residuals of a hysterectomy is remanded. The appeal for special monthly compensation for loss of use of creative organ is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding of a current lupus disability. 2. The preponderance of the evidence is against a finding of a current hypertension disability. 3. The preponderance of the evidence is against a finding of a current skin disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for lupus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 3. The criteria for service connection for a skin disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from September 1982 to August 1983 and from January 1987 to July 1990, as well as periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA). These matters are on appeal from a February 2015 rating decision. The Board notes that in addition to the claims addressed below, the Veteran also perfected an appeal for service connection of a headache disability. During the pendency of the appeal, the agency of original jurisdiction (AOJ) granted the claim for service connection for headaches in December 2019. Thus, the appeal was satisfied in full and the Board no longer has jurisdiction over the claim. The Veteran is still within her appeal period if she wishes to appeal the assigned effective date for service connection for headaches. With respect to the claims for service connection for the bilateral knees, the Board acknowledges that a claim for service connection for a “lower leg injury” was denied in January 1984. As the rating decision did not specifically address the knees, the Board finds that the rating decision was not a prior final denial of the knee claims and need not address whether the claim is reopened. 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; 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 (1) a current disability; (2) 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 disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). 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). 1. Entitlement to service connection for lupus. The claim for service connection for lupus fails for lack of a current diagnosis. The Veteran asserts that she has lupus and that it began on July 28, 1987 and was a persistent disability in service. See April 2015 notice of disagreement. The July 1987 service treatment record is a biopsy report regarding panniculitis on the left buttock. The service physician commented that the differential diagnosis of that type of panniculitis included trauma and other collagen vascular diseases, including lupus. A post-service treatment record dated in December 1995 indicated a fibrolipoma-relapse on the left area of the buttocks. Remaining treatment records do not indicate a diagnosis of a chronic lupus disorder. In fact, a September 2002 treatment record includes a list of chronic illnesses and does not indicate a diagnosis of lupus. The Board acknowledges the Veteran’s belief that she has lupus and that it is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosis and etiology of lupus, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Diagnosis of lupus requires appropriate laboratory testing and interpretation of laboratory test results. This is not something that a person can personally observe. As such, the Board affords the Veteran’s statements regarding lupus, only limited probative value. For these reasons, the Board finds that the preponderance of evidence is against a finding of a current diagnosis of lupus. Thus, the claim must be denied. 2. Entitlement to service connection for hypertension. The claim for service connection for hypertension fails for lack of a current diagnosis. Private treatment records do not indicate a diagnosis of hypertension. The Board acknowledges that the Veteran’s assertion that she has hypertension and that it began in service in August 1989. The Board also acknowledges the Veteran’s report that her hypertension was a persistent disability in service. See April 2015 notice of disagreement. The Board acknowledges that an August 1989 service treatment record indicates that the Veteran had “mild hypertension” while pregnant. However, subsequent treatment records indicate normal blood pressure readings and do not indicate a diagnosis of hypertension. Further, a June 1994 service treatment record specifically noted that the Veteran did not have hypertension or high blood pressure. A September 2002 treatment record includes a list of chronic illnesses and does not indicate a diagnosis of hypertension. As there is no indication that the Veteran continued to have hypertension after the finding of mild hypertension in August 1989, the Board finds that the August 1989 finding was temporary and did not indicate a chronic disability. The Board acknowledges the Veteran’s statements and belief that that she has hypertension related to service; however, the Board finds that the diagnosis and etiology of hypertension falls outside the realm of common knowledge of a lay person. See Jandreau, supra. In this regard, hypertension is diagnosed based on objective findings, including multiple blood pressure readings. Therefore, the Board affords the Veteran’s statements regarding diagnosis of hypertension limited probative value. For these reasons, the claim must be denied. 3. Entitlement to service connection for a skin disorder. The claim for service connection for a skin disorder fails for lack of a current diagnosis. Private treatment records do not indicate a diagnosis of a skin disorder other than a lipoma on the left buttock, the removal of which has already been service connected. The Board acknowledges the Veteran’s assertion that she has a current skin disorder and that it began during a period of service on August 30, 1995. See April 2015 notice of disagreement. Treatment records indicate findings of black moles on the Veteran’s back and thigh. See August 1995 treatment record. Remaining treatment records do not indicate a diagnosis of a skin disorder other than the moles observed on the Veteran’s back and thigh. There is no indication that the moles themselves are manifestations of a diagnosed skin disorder. The Board finds that diagnosis and etiology of skin disorders falls outside the realm of common knowledge of a lay person. See Jandreau, supra. While the Veteran is competent to report personal observations of skin changes, she has not been shown to have any expertise in identifying causes and diagnoses of skin changes, or determining whether a change is acute or chronic. As such, the Board places only a limited probative value on the Veteran’s statements regarding the asserted skin disorder. For these reasons, the Board finds that the preponderance of the evidence is against a finding of a current diagnosis of a skin disorder. Thus, the Board need not reach the question of the type of the Veteran’s duty status in August 1995 when the disorder purportedly began. For these reasons, the claim must be denied. REASONS FOR REMAND Compensation is warranted for disability due to personal injury suffered or disease contracted during “active military, naval, or air service.” 38 U.S.C. §§ 1110, 1131. “Active military, naval, or air service” includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during such training. 38 U.S.C. § 101 (24). The term “active duty for training” includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101 (22) (C). The term “inactive duty training” includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101 (23). 1. Entitlement to service connection for right hand and right wrist (claimed as carpal tunnel syndrome) disorders. The Veteran asserts that she has current disorders in her right hand and wrist. Although treatment records do not indicate a specific diagnosis for the right hand or wrist, the Board acknowledges that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran asserts that her right hand and wrist disorders began during active service on November 1, 1989. See April 2015 notice of disagreement. An October 1989 service treatment record noted the Veteran’s complaints of right wrist pain for the prior four weeks. She reported that the right and hand and wrist conditions were persistent through service and to the present. As the Veteran has right hand and wrist pain, and there is an indication that the disorder began during service, a VA opinion should be obtained to determine whether any in-service disorder or symptoms are related to the present disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a right knee and right ankle disorders. The Veteran has reported right knee and ankle pain. Treatment records confirm a current diagnosis of right knee osteoarthritis. See February 2009 treatment record. With respect to the right ankle, pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran asserts that her right knee and right ankle disorders began during a period of service on May 19, 2003 and were persistent disabilities in service and to the present. See April 2015 notice of disagreement. Treatment records indicate reports of right ankle pain in April 2004. A February 2008 treatment record indicates reports of right knee pain. Reserve records indicate that the Veteran had active duty for at least 18 days from November 2002 to November 2003. It does not appear that all of the possible attempts have been made to determine the Veteran’s status during the specific date on which the Veteran asserts the disabilities began. Therefore, on remand, the AOJ must take the appropriate steps to determine whether the Veteran had active duty, ACDUTRA, or INACDUTRA on May 19, 2003. If the evidence supports a finding of active duty, ACDUTRA, or INACDUTRA on May 19, 2003, the AOJ should obtain a VA opinion as to whether any in-service right knee and right ankle injuries are related to any present right knee and ankle disorders. 3. Entitlement to service connection for left knee and left ankle disorders. The Veteran has a current diagnosis of left knee osteoarthritis. See February 2009 treatment record. The treatment record also indicated the Veteran’s report of left knee pain for approximately seven years. A September 2004 private treatment record noted an assessment of sinus tarsi synovitis of the left ankle. Service treatment records indicate that the Veteran twisted her left knee and left ankle during a period of INACDUTRA on June 20, 2003. The injury was found to be within the line of duty. The Veteran has indicated continuity of left knee and left ankle symptoms since service. See e.g. notice of disagreement. In the Veteran’s December 2017 substantive appeal, the Veteran described the left knee and ankle injury as resulting from stepping in a pothole and severely twisting her left ankle and knee. A March 2004 private treatment record is consistent with the Veteran’s reported history of the left knee and ankle injuries. As the Veteran has current diagnoses of the left knee and left ankle, an in-service injury, and she has reported continuity of left knee and left ankle symptomatology since the injury in service, a VA opinion should be obtained to determine whether the in-service injury is related to the present disabilities. See McLendon, supra. 4. Entitlement to service connection for a cervical spine disorder. The Veteran reports neck pain. Pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran asserts that her cervical spine disorder began during a period of service on September 9, 1996 and was a persistent disability in and since service. See April 2015 notice of disagreement. Reserve records indicate that the Veteran had active duty for at least 9 days from November 1995 to November 1996. It does not appear that all of the possible attempts have been made to determine the Veteran’s status during the specific date on which the Veteran asserts the disability began. Therefore, on remand, the AOJ must take the appropriate steps to determine whether the Veteran had active duty, ACDUTRA, or INACDUTRA on September 9, 1996. If the evidence supports a finding of active duty, ACDUTRA, or INACDUTRA on September 9, 1996, the AOJ should obtain a VA opinion as to whether any in-service cervical spine injury or incurrence is related to any present cervical spine disorder. 5. Entitlement to service connection for left foot plantar fasciitis. The Veteran has a current diagnosis of left foot plantar fasciitis. See March 2014 private treatment record. The Veteran asserts that her left foot plantar fasciitis began during a period of service on July 27, 1999 and was a persistent disability in and since service. See April 2015 notice of disagreement. Medical records indicate treatment for plantar fasciitis on the left foot, in August 2003, October 2003, July 2004 and August 2004. Reserve records indicate that the Veteran had active duty for at least 16 days from November 1998 to November 1999. It does not appear that all of the possible attempts have been made to determine the Veteran’s status during the identified dates during which the Veteran asserts the disability began and/or treatment records indicate diagnosis of left foot plantar fasciitis. Therefore, on remand, the AOJ must take the appropriate steps to determine whether the Veteran had active duty, ACDUTRA, or INACDUTRA on July 27, 1999. If the evidence supports a finding of active duty or ACDUTRA on July 27, 1999, the AOJ should obtain a VA opinion as to whether any in-service left foot plantar fasciitis disorder is related to any present left foot plantar fasciitis disorder. 6. Entitlement to service connection for a thyroid disorder. The Veteran has a current diagnosis of thyroid nodules or goiter. In this regard, a September 2008 ultrasound indicated the presence of a thyroid goiter. The Veteran asserts that her thyroid disorder began on February 3, 1997 and was a persistent disability in service. See April 2015 notice of disagreement. Treatment records indicate a notation regarding the Veteran’s report that she believed she had a thyroid disorder in 1997. An October 2008 treatment record noted that the Veteran had a history of thyroid nodules and prior drainage of the same. Reserve records indicate that the Veteran had active duty for at least 15 days from November 1996 to November 1997. It does not appear that all of the possible attempts have been made to determine the Veteran’s status during the identified dates during which the Veteran asserts the disability began and/or treatment records indicate diagnosis of left foot plantar fasciitis. Therefore, on remand, the AOJ must take the appropriate steps to determine whether the Veteran had active duty, ACDUTRA, or INACDUTRA on February 3, 1997. If the evidence supports a finding of active duty or ACDUTRA on February 3, 1997, the AOJ should obtain a VA opinion as to whether any in-service thyroid disorder is related to any present thyroid disorder. 7. Entitlement to service connection for a sinus disorder. The Veteran asserts that her chronic sinusitis began on September 11, 1990, during a period of active duty, and was a persistent disability in and since service. See April 2015 notice of disagreement. Post-service treatment records indicate diagnoses of sinusitis/bronchitis in August 2000, July 2009, and November 2010. Private treatment records consistently listed nasal decongestant and expectorant as active medication. See e.g. December 2008 and March 2009 private treatment records. As the Veteran has a current diagnosis of a sinus/rhinitis disorder, and there is an indication that the disorder(s) began during service, a VA opinion should be obtained to determine whether any in-service disorder or symptoms are related to the present disorder(s). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 8. Entitlement to service connection for gallbladder removal, residuals, and scar. Treatment records indicate that the Veteran’s gallbladder was removed on January 25, 1995. Reserve records indicate that the Veteran had active duty for at least 110 days from November 1994 to November 1995. It does not appear that all of the possible attempts have been made to determine the Veteran’s status during the specific date on which the Veteran asserts the disability began. Therefore, on remand, the AOJ must take the appropriate steps to determine whether the Veteran had active duty, ACDUTRA, or INACDUTRA on January 25, 1995. If the evidence supports a finding of active duty or ACDUTRA on January 25, 1995, the AOJ should obtain a VA opinion as to whether any in-service symptoms were related to the gallbladder disorder. 9. Entitlement to service connection for a hysterectomy. The Veteran asserts that her hysterectomy was related to service. A November 1983 VA X-ray (undertaken in pursuit of an unrelated claim) indicated a pelvic mass. Treatment records indicate that the Veteran had an endometrial biopsy on July 25, 2003. The Veteran reported experiencing symptoms related to the hysterectomy during service on March 10, 2000. See April 2015 notice of disagreement. A private treatment record also indicates that the Veteran had a hysterectomy on February 16, 2004. See March 2004 note from Dr. T.A. Reserve records indicate that the Veteran had active duty for 5 days from November 1999 to November 2000 and 12 days for the period from November 2003 to November 2004. It does not appear that all of the possible attempts have been made to determine the Veteran’s status during the specific date on which the Veteran asserts the disability began. Therefore, on remand, the AOJ must take the appropriate steps to determine whether the Veteran had active duty, ACDUTRA, or INACDUTRA on March 10, 2000 or February 16, 2004. 10. Entitlement to a special monthly compensation for loss of use of creative organ. This appeal will be directly affected by the outcome of the appeal for service connection for the residuals of the Veteran’s hysterectomy. Thus, the Board will not adjudicate the issue at this time. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Offer the Veteran another opportunity to submit any outstanding treatment records to support her claims or complete the appropriate authorization for VA to obtain the records on her behalf. 2. Make the appropriate attempt to obtain duty status information for the asserted dates of service: January 25, 1995 (gallbladder removal); September 9, 1996 (cervical spine); February 3, 1997 (thyroid); July 27, 1999 (plantar fasciitis); March 10, 2000 (gynecological symptoms); May 19, 2003 (right knee and right ankle); and February 16, 2004 (hysterectomy). 3. Following completion of items 1 and 2, afford the Veteran the appropriate VA orthopedic examination to determine whether any current right hand, right wrist, left knee, or left ankle disorder is due to service. Following review of the entire electronic file, the examiner is asked to address the following. (a.) Identify all current disorders of the right hand, right wrist, left knee and left ankle. The examiner is asked to consider that the requirement for a current disability is satisfied if there is pain that results in functional impairment. (b.) For each disorder identified, or for any pain resulting in functional impairment, is it at least as likely as not (a 50 percent probability or higher) that the disorder had onset in, or are otherwise related to service? Regarding the left ankle and left knee, consider the service treatment record which noted the Veteran’s injury in June 2003, involving the left knee and ankle, and the subsequent treatment record which noted “severe” left ankle sprain. (c.) Complete rationale must be offered for any opinion rendered. 4. Following completion of items 1 and 2, obtain a VA opinion as to whether the Veteran’s claimed sinus or bronchitis disorder, is due to service. The Board leaves it to the discretion of the examiner to determine whether the Veteran needs to be examined. Following review of the entire electronic file, the examiner is asked to address the following. (a.) Does the Veteran have a chronic sinus/bronchitis disorder? (b.) If so, is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s sinus/bronchitis disorder had onset in, or is otherwise related to service? Consider the private treatment records that indicate medications for nasal congestion and cough as active medications over time. (c.) Complete rationale must be offered for any opinion rendered. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, to include obtaining any necessary VA opinions regarding a relationship between any right knee, right ankle, cervical spine, plantar fasciitis, thyroid disorder, gallbladder removal, and/or hysterectomy and service. Then, readjudicate the Veteran’s claims based on the entirety of the evidence. If any claim remains denied, issue the Veteran and his representative a supplemental statement of the case. Allow an appropriate period of time for response. Ryan Frank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, 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.