Citation Nr: 20034056 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 14-28 617A DATE: May 15, 2020 ORDER Entitlement to service connection for a skin disability, to include a disability manifested by warts of the hands, knees, head and left eye is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for a disability manifested by blood in the stool, to include a kidney disability, hemorrhoids, and/or a gastrointestinal disability, is remanded. FINDINGS OF FACT 1. At no time during, or prior to, the pendency of the claim did the Veteran have a current diagnosis of a skin disability, to include a disability manifested by warts of the hands, knees, head and left eye. 2. Headaches are not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest within one year of service discharge. 3. A low back disability is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disability, to include a disability manifested by warts of the hands, knees, head and left eye, have not been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 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 Air Force from October 2002 to June 2009. In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. In April 2018 and May 2019, the Board remanded the claims on appeal for further development and adjudication. The Board finds that there was substantial compliance with its April 2018 and May 2019 remand directives as they pertain to the claims herein decided. 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). Finally, the Board notes that in May 2019, the Board remanded the Veteran’s claims, so as to provide him with the opportunity to obtain additional treatment records, specifically relevant outstanding private treatment records. In July 2019, the RO sent the Veteran notification of and a request for authorization to obtain such records. However, the Veteran never responded to the request. Therefore, while VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that the Veteran make efforts to assist VA in gathering evidence relevant to his claims. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”) Therefore, the Board finds that the RO has substantially complied with the Board’s directives in this regard, and VA has no remaining duty regarding obtaining additional records in conjunction with these claims. 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.; 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). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran’s filing of a claim for benefits based on that disability, the report of the 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. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292 (1991). 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 skin disability, to include a disability manifested by warts of the hands, knees, head and left eye is denied. The Veteran contends that he currently suffers from a skin disability, to include a disability manifested by warts of the hands, knees, head and left eye as a result of his service. Service treatment records reflect that the Veteran was diagnosed with warts in February 2009 and anomalies of the skin in November 2008. However, the Veteran was treated for his skin conditions and the remainder of his service treatment records are silent for any complaints, treatment or diagnosis of a skin disability. Post-service the Veteran’s records are also silent for any skin disabilities. Furthermore, the Veteran reported that his claimed skin condition spontaneously began in 2005 but resolved. In February 2019, the Veteran underwent a VA Skin Diseases examination with an accompanying disability benefits questionnaire (DBQ). The examiner noted that during service, the Veteran was diagnosed with warts and anomalies of the skin. However, the examiner found that the Veteran’s conditions were no longer active and had resolved. After a review of the Veteran’s records as well as an examination of the Veteran, the examiner found that the Veteran did not have a skin condition. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner found that there was no current pathology and/or diagnosis of warts and/or any skin disorder in order to render a medical opinion. The examiner again noted that while the Veteran had been diagnosed with warts in 2008, such had been removed and the issue was no longer active. The Board finds that service connection for a skin disability, to include a disability manifested by warts of the hands, knees, head and left eye cannot be established, as the Veteran does not have a current disability during the pendency of his claim. Furthermore, the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. See McClain, supra; Romanowsky, supra. Specifically, the evidence of record contains no diagnosis in this regard, and objective testing was all normal. The Board has considered the Veteran’s allegations that he has experienced a skin disability since service. In this regard, while he is competent to report his symptoms, the evidentiary record does not reflect that his symptoms have been attributed to any specific disability. Furthermore, the Board finds that any determination as to the presence of the claimed disability is medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Thus, the Veteran, as a layperson, is not competent to offer a diagnosis with respect to his claimed skin disability as he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires medical expertise and testing. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis in this regard. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Veteran’s claim must be denied, as the evidence of record shows no current disability for which service connection can be granted with respect to the Veteran’s skin. See Brammer, supra (in the absence of proof of the claimed disability, there can be no valid claim). 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 claim of entitlement to service connection for a skin disability, to include a disability manifested by warts of the hands, knees, head and left eye. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Entitlement to service connection for headaches and a low back disability are denied. The Veteran contends that he suffers from headaches and a low back disability as a result of his active duty service. The Veteran’s service treatment records reflect that the Veteran was treated for headaches in service as well as for a back sprain in 2008. However, the remainder of the Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of headaches or a low back disability. The Veteran’s post-service treatment records are silent for any complaints of headaches or a low back disability within one year of the Veteran’s discharge from service. However, the Veteran was subsequently diagnosed with tension headaches and lumbosacral strain. In February 2019, the Veteran underwent VA Headaches and Back Conditions examinations. The headache examiner diagnosed the Veteran with tension headaches. The Veteran reported that his headaches began in service in 2005 and had continued ever since. The examiner opined that the Veteran’s headaches 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 records reflect that the Veteran was diagnosed with and treated for headaches on active duty, there were no medical records showing a progression and/or continuation of the headaches or any subsequent treatment or any related chronic headaches while the Veteran was still on active duty. The back examiner diagnosed the Veteran with lumbosacral strain and the Veteran reported that such began in service in 2005 and had progressed. The examiner opined that the Veteran’s low back disability was 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 Veteran’s service treatment records reflect that he was diagnosed with and treated for a low back sprain during service, there were no records showing a progression and/or continuation of back pain and treatment of any related back condition subsequently while the Veteran was still on active duty. During the Veteran’s October 2017 hearing, he testified that he began experiencing headaches and low back pain during his active duty service. He indicated that he only remembered experiencing headaches while stationed at his first duty station. He further testified that his low back pain began while working on the flight line, lifting heavy objects. The Board notes that the Veteran has a current diagnosis of headaches as well as a low back disability, specifically low back strain; 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, unfortunately headaches and low back strain are not chronic disabilities subject to such forms of service connection pursuant to 38 C.F.R. § 3.307 and 3.309. Furthermore, the Veteran does not have a diagnosis of arthritis in his low back. Therefore, presumptive service connection or service connection based on continuity of symptomatology is not warranted. As far as direct service connection, the Board notes that while the Veteran’s service treatment records reflect that he was treated for headaches and a low back sprain in service, they are otherwise silent as to any complaints, treatment or diagnosis of such conditions, and therefore it appears that the Veteran’s in-service headache and low back strain were acute and resolved. 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 VA examiners opined that the Veteran’s headaches and low back disability were less likely than not incurred in service or as a result of any claimed in-service injuries, events or illness. Furthermore, these opinions offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. 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”). Therefore, the Board affords great probative weight to the February 2019 VA examiners’ opinions. Furthermore, the Board notes that there are no contrary opinions of record. As the Veteran is missing an essential element of direct service connection, such is not warranted. The Board has also considered the lay statements of the Veteran which indicated that his headaches and low back disability are related to or began during 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, 469-470 (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, 492 F.3d at 1376-77. However, the question of causation of headaches and a low back disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge of the neurological and musculoskeletal systems. There is no indication that the Veteran possesses such specialized knowledge and there is no indication that he has had any specialized training that would render him competent to render medical diagnoses. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the lay opinions of the Veteran regarding the etiology of his headaches and low back disability are non-probative evidence. See Jandreau, supra; Woehlaert, 21 Vet. App. at 456. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his headaches and low back disability and his active duty service. In contrast, the VA examiners took into consideration all the relevant facts in providing their opinions. Therefore, the Board accords great probative weight to the VA examiners’ opinions. Consequently, the Board finds that the Veteran’s headaches and low back disability 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 headaches and a low back disability. 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; see also Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s remaining claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In addition, as previously noted, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268 Entitlement to service connection for a disability manifested by blood in the stool, to include a kidney disability, hemorrhoids, and/or a gastrointestinal disability, is remanded. The Veteran contends that he suffers from a disability manifested by blood in the stool, to include a kidney disability, hemorrhoids, and/or a gastrointestinal disability. Specifically, he contends that such began in service in 2005. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that an additional VA examination is needed in order to determine the nature and etiology of the Veteran’s claimed disability manifested by blood in the stool, to include a kidney disability, hemorrhoids, and/or a gastrointestinal disability. The Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of a disability manifested by blood in the stool. However, there are reports of gastrointestinal symptoms in 2007 and 2008. Post-service treatment records reflect that the Veteran was diagnosed with hematochezia, proctitis, and ulcerative proctitis. As previously noted, the Veteran’s claims were remanded in April 2018. The Board determined that a VA examination was necessary to determine the likely nature and etiology of the Veteran’s claimed disability. The Board’s remand instructions specifically asked the examiner to discuss all current and prior diagnoses, to reconcile all prior diagnoses, to include hematochezia, proctitis and ulcerative colitis with any current findings and if such reconciliation cannot be done to explain why. Furthermore, the Board order that as to each current diagnosis and any prior diagnosis that could not be reconciled, an etiological opinion should be given. In February 2019, the Veteran underwent an Intestinal Conditions examination. The examiner found that the Veteran did not have and never had an intestinal condition. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that after reviewing the Veteran’s records and performing an examination, the Veteran had no current pathology to render a medical opinion. The examiner found that there were no records from the Veteran’s active duty service of blood in the stool. The examiner noted that the Veteran’s post-service records reflected diagnoses of hematochezia, proctitis and ulcerative proctitis, but noted that his examination was within normal limits. The Board finds that while the examiner mentioned the Veteran’s prior diagnoses, he did not attempt to reconcile them with his current findings and he did not give an etiological opinion as to them. Therefore, on remand an addendum opinion which addresses the Board’s specific concerns should be obtained. See Barr, 21 Vet. App. at 311; Stegall, 11 Vet. App. at 268. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed disability manifested by blood in his stool, to include a kidney disability, hemorrhoids, and/or a gastrointestinal disability. After reviewing the record, the examiner should: A) Identify all current and prior diagnoses of a condition manifested by blood in the stool, to include hematochezia, proctitis and ulcerative proctitis. B) Reconcile all prior diagnoses of a condition manifested by blood in the stool, to include hematochezia, proctitis, and ulcerative proctitis, with the current findings. If any prior diagnosis cannot be reconciled with the current findings, explain why. C) As to each current diagnosis and any prior diagnosis that cannot be reconciled with the current findings, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or is otherwise related to his active duty service and explain why. In rendering an opinion, the examiner should consider and weigh the Veteran’s relevant lay statements. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 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.