Citation Nr: 21075683 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-53 435 DATE: December 21, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for a left toe disability is denied. Entitlement to service connection for a right toe disability is denied. REMANDED Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding the Veteran has a respiratory disability due to an event, injury, or disease in service. 2. The preponderance of the evidence is against finding the Veteran has a left toe disability due to an event, injury, or disease in service. 3. The preponderance of the evidence is against finding the Veteran has a right toe disability due to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 2. The criteria for service connection for a left toe disability are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 3. The criteria for service connection for a right toe disability are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 2007 to February 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Saint Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO). In September 2019 a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159 (a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(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 (1990). 1. Entitlement to service connection for a respiratory disorder is denied. Service treatment records (STRs) reveal a visit in April 2009, when he was diagnosed with allergic rhinitis, treated with Flonase, Allegra, and Sudafed. A December 2010 problem list identifies allergic rhinitis as a chronic condition. At the Board hearing he relayed developing allergies during service. He reported exposure to burn pits in service. In September 2020, the Veteran underwent an examination. He reported wheezing with activities. The examiner found no pathology to render a diagnosis. The claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale was the Veteran does not have a respiratory condition. A PFT conducted in June 2021 was within normal limits. A June 2021 chest x-ray was normal. VA treatment records from 2019 to present are void for any reports or complaints related to allergic rhinitis, or any respiratory condition. The Board has considered the contentions that the Veteran has a respiratory disability related to service. The Veteran is not competent to render a diagnosis or an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. The Veteran, as a lay person, has not been shown to be capable of making medical conclusions. The evidence does not show that the Veteran developed a respiratory disability during service that has continued to present. Although there is a record of allergic rhinitis during service, upon examination in 2020, he reported wheezing, but there was no indication of allergic rhinitis, or any other respiratory condition. Treatment records from 2019 to present are void for a respiratory complaint. There is no competent opinion to the contrary. The Board appreciates the Veteran's belief that he has a respiratory disability related to his time in service, but the preponderance of the evidence is against such a finding. Absent a current disability or disabling condition during the appeal period, service connection cannot be granted. Under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a left toe disability is denied. 3. Entitlement to service connection for a right toe disability is denied. STRs are void for any toe complaints or diagnoses. In September 2020, the Veteran underwent an examination. He reported during service he noticed his left fourth digit toenail became thicker and slightly discolored; he was seen on sick call and was told he may have Athlete's foot. He denied any pain in the left and right toes. He did not have Morton's neuroma or metatarsalgia, nor did he have hammer toe, hallux valgus, hallux rigidus, pes clavus, or malunion of the metatarsals. The examiner opined the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. On physical examination there was nail fungus of the left fourth digit. The examiner noted no evidence the Veteran received treatment for nail fungus during service, or that he had been treated since separating. Further, during service there is no indication of a toe-related complaint in either foot. At the Board hearing the Veteran testified to experiencing Athlete's foot during service. Upon review of the STRs, there is no indication of Athlete's foot or a toe disability or for many years thereafter. The Board has considered the contentions that the Veteran has a left and right toe disability related to service. The Veteran is not competent to render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. The Veteran, as a lay person, has not been shown to be capable of making medical conclusions. The probative evidence does not show that the Veteran developed a left or right toe disability during service that has continued to present. There is no record of Athlete's foot in service, or of toe fungus, and there is a negative opinion of record. There is no competent opinion to the contrary. The Board appreciates the Veteran's belief that he developed a left and right toe disability related to his time in service, but the preponderance of the evidence is against such a finding. Under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence is against the Veteran's claim, and thus that doctrine is not applicable. REASONS FOR REMAND 4. Entitlement to service connection for a skin disorder is remanded. STRs are void for reports of a skin condition. VA treatment records show complaints of rash. At a July 2019 visit, the Veteran reported having a persistent papular or nodular skin rash, occasionally at the left arm pit. The Veteran underwent an examination in September 2020 and was diagnosed with tinea versicolor of the neck. The examiner noted that the Veteran's had hypopigmentation patches on the skin that look white and were located on his neck. The examiner opined the condition was less likely than not incurred in or caused by military service. The examiner explained the Veteran was not diagnosed or treated for a skin condition during service or since separation. An addendum opinion is needed to consider the fact the Veteran was seen post-service and treated for a persistent papular or nodular skin rash. 5. Entitlement to service connection for a back disorder is remanded. STRs document December 2010 problem list as chronic, muscle spasms of the back. A September 2008 record notes the Veteran had a back sprain and back muscle spasms. VA treatment records show ongoing complaints of and treatment for low back pain. At the Board hearing the Veteran reported experiencing a back spasm during service. He reported post-service self-treating with over-the-counter medication as he did not have health insurance. In April 2021, the Veteran underwent an examination. Range of motion testing was within normal limits. He reported back pain started in 2008 or 2009 due to an injury while in training. When the condition began, symptoms were discomfort, pain, back spasms, and pain with movement. He reported current symptoms of discomfort, and pain. Radiology reports from July 2019 were normal. The examiner opined the condition is less likely than not incurred in or caused in service. The examiner further found there was no basis to support a pathological back condition based on x-ray and exam. The examiner explained the Veteran has been able to de-ice planes for 10 years at one of the coldest and slippery airports in the country, without a claim of limitation despite having to inspect panes. The examiner concluded he may have back pain from obesity. As part of the rationale for determining a back condition is not related to service is the fact the Veteran has been capable of de-icing planes, and x-rays were normal, an addendum is needed. An opinion is needed considering the in-service reports of spasms, and current reports of back pain. 6. Entitlement to service connection for a right foot disability is remanded. VA outpatient treatment records are silent as to any complaints of, treatment for or a diagnosis of right foot disability. The Veteran underwent an examination in January 2021, and the examiner noted he was diagnosed with bilateral pes planus and bilateral plantar fasciitis. He reported he developed a foot condition in feet after standing, 4 to 5 years ago. He reported pain comes and goes to bottoms of feet on outside arches, that worsens with prolonged standing. He had pain bilaterally. Radiology findings were normal. The examiner opined a right foot disability was less likely than not incurred in or caused by service. The examiner reasoned there was no documentation of right foot pain during service, therefore the right foot disability is less likely than not related to service. Of note, during service the Veteran was treated for left foot plantar fascitis, and the Veteran has now been granted service connection for left foot plantar fascitis. As the basis of the negative opinion was mainly on the lack of documentation during service, an addendum is needed. 7. Entitlement to service connection for a left knee disability is remanded. 8. Entitlement to service connection for a right knee disability is remanded. VA treatment records are silent of any complaints, treatment or diagnosis of a left knee condition. He was treated for right knee complaints during service. In December 2010, he was seen with complaints of a two-week history of right knee pain. He reported running one day and the knee began hurting. On examination he had soft tissue knee pain around the right lateral knee. He was diagnosed with iliotibial band friction syndrome. Ice therapy, stretching, and myofascial massage were recommended. He was placed on a physical profile for the right knee strain, effective January 2011. The Veteran underwent an examination in October 2020. He reported during service he was running through the woods, tweaked his right knee, such that he did complete the run but had to fall back quite a bit due to pain in the knee. He reported the condition worsened since onset. He reported pain in the morning, and aching pain that loosened up throughout the day. He had undergone physical therapy. Right knee range of motion was 0 to 125 degrees, with no pain. Left knee range of motion was 0 to 130 degrees. Left knee had mild tenderness or pain on palpation of the medial patellar facet. The examiner concluded the claimed bilateral knee disability was less likely than not incurred in or caused by an in-service injury, event, or illness. His right knee developed while running, and there was no acute trauma. He was diagnosed with iliotibial band syndrome in December 2010 and was given stretches. His discharge papers do not note any knee issues. He reported occasional knee issues, no swelling, locking and really no pain on exam, as well as a negative x-ray from July 2019. The examiner found no clear diagnosis of any objective knee pathology. The examiner noted the Veteran had a knee strain, with no clear symptoms at present. His left knee has no documentation of any in service pain or injury, and he has episodic pain consistent with patellofemoral pain syndrome. An opinion is needed considering the Veteran's reports of knee pain and a diagnosed knee strain, as well as the in-service reports of knee pain. As for the left knee, a lack of documentation during service is not reason enough for a negative opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the etiology of the Veteran's skin disability. The need for an in-person examination is left to the discretion of the examiner. a) Is it at least as likely as not a skin condition is related to his service? To include tinea versicolor, and a papular, nodular rash. b) The examiner is asked to address the Veteran's contentions, personnel records, and STRs. The examiner is asked to provide a rationale for all opinions reached. 2. Obtain an addendum opinion as to the Veteran's back disability claim. The need for an in-person examination is left to the discretion of the examiner. Following a review of the claims file, the examiner should prove an opinion for the following: a) Is it at least as likely as not (50 percent probability or greater) that a back disability is related to his service? The examiner is asked to address the Veteran's contentions, personnel records, and STRs. The examiner is asked to reference the Veteran's in-service report of back pain, back sprain, and back spasms. Radiographic evidence of a condition is not requisite to service connection. The examiner is asked to provide a rationale for all opinions reached. 3. Obtain an addendum opinion as to the Veteran's right foot disability claim. The need for an in-person examination is left to the discretion of the examiner. Is it at least as likely as not that any diagnosed right foot disability is related to his service? The Veteran has been found to have a right foot plantar fascitis and pes planus. The examiner is asked to address the Veteran's contentions, personnel records, and STRs. The examiner is asked to provide a rationale for all opinions reached. 4. Obtain an addendum opinion as to the Veteran's bilateral knee disability claim. The need for an in-person examination is left to the discretion of the examiner. a) Is it at least as likely as not that any diagnosed bilateral knee disability or functional impairment in the knee is related to his service? The Veteran has been found to have a knee strain, and patellofemoral pain syndrome. The examiner is asked to address the Veteran's contentions, personnel records, and STRs. The examiner is asked to address the Veteran's in-service report of knee pain. To the extent the Veteran reported bilateral knee pain since service, he is competent to so report. The examiner is asked to provide a rationale for all opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.