Citation Nr: 21013941 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-14 574 DATE: March 10, 2021 ORDER Entitlement to service connection for tinea on the back is denied. Entitlement to service connection for acne vulgaris is denied. Entitlement to service connection for a respiratory disability to include chronic upper respiratory infections and chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for sinusitis is denied. Entitlement to service connection for a disability manifested by vertigo is denied. Entitlement to service connection for an eye disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had tinea on the back at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had acne vulgaris at any time during or approximate to the pendency of the claim. 3. The Veteran’s chronic obstructive pulmonary disease is due to tobacco use and he does not have any other nonservice-connected respiratory disability that began during active service or is otherwise related to an in-service event, injury or disease. 4. The preponderance of the evidence of record is against finding that the Veteran has had sinusitis at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence of record is against finding that the Veteran has had a disability manifested by vertigo at any time during or approximate to the pendency of the claim. 6. The Veteran does not have a current eye disability that began during active service or is otherwise related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for tinea on the back have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for acne vulgaris have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a disability manifested by vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for an eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1975 to April 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. In October 2019, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Tinea on the back During service, in September 1976, the Veteran was treated for tinea on his back. After service, in 2004, he reported a history of a rash on his body. In October 2006, the Veteran reported a rash on the trunk of his body which resolved after taking Allegra. He reported experiencing acne all of his life. Although he testified to problems with acne at his hearing, he did not describe any problem with tinea on his back. The Veteran now seeks service connection for the tinea which was treated in service. Records since October 2006, to include since the Veteran filed his claim in September 2014, do not show any complaints, diagnosis, or treatment for tinea on the back. In a January 2020 VA examination, the VA examiner examined and interviewed the Veteran. He also reviewed the pertinent medical history. The examiner concluded that while the Veteran had tinea in service, the condition had now resolved. As a result, the Veteran had no residuals or current findings related to the 1976 tinea. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). The evidence is against a finding of tinea on the back at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). As there is no competent evidence of a current tinea disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent the Veteran is asserting he has a current tinea disability that resulted from service, the Veteran is not shown to have medical education or experience. He is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., a rash; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or provide an opinion as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The most probative evidence is the findings of the VA examiner after interview and examination of the Veteran. Accordingly, the preponderance of the evidence is against the claim for service connection for tinea on the back and that claim is denied. 2. Acne vulgaris In addition to his tinea claim, the Veteran filed for service connection for another skin disability, acne vulgaris. A January 2020 VA examiner stated the Veteran does not have acne vulgaris. His current diagnosis is acne. The VA examiner noted that the Veteran’s February 1975 entrance examination reported mild acne. Thus, the acne pre-existed service. The examiner also noted the Veteran was treated with medication on at least two occasions while in service. The Veteran currently had acne on examination with multiple bumps on the face and dilated pustules. The VA examiner determined the acne was aggravated in the service due to multifactorial causes including hygiene, diet, and heat. There are no contrary opinions of record nor medical evidence that is in significant conflict with the opinion of the VA examiner. Notably, in September 2020 VA granted service connection for acne. The medical evidence does not show a diagnosis of acne vulgaris during or close in time to the appeal period and the Veteran as a lay person is not competent to provide such a diagnosis. Romanowsky, 26 Vet. App. at 294; Davidson, 581 F.3d 1313. Absent a diagnosed disability, service connection for acne vulgaris must be denied. See 38 C.F.R. § 3.303; see also Brammer, 3 Vet. App. at 225. 3. Respiratory disability The Veteran has a current respiratory disability. At his January 2020 VA examination he was diagnosed with COPD. Thus, the remaining question is whether the current COPD is related to service. Service treatment records show the Veteran was treated on several occasions for sinus/rhinitis or upper respiratory infections with or without headaches starting in September 1975. During the separation examination, evaluation of the respiratory system and a chest X-ray was normal. In a corresponding report of medical history, the Veteran specifically denied having had respiratory symptoms such as shortness of breath or chronic cough. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having shortness of breath or chronic cough if they had been present. He also denied having any illness or injury not already noted on the report of history. A respiratory disability is not shown by medical evidence until approximately January 2020, many years after the Veteran’s separation from service. Regarding onset of symptoms related to a respiratory disability, post-service the Veteran has reported he cannot breathe through his nose, has problems with his throat, and wheezing. The Veteran presented for a VA examination in January 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. After the examination and review of the records, the examiner diagnosed the Veteran’s respiratory disability as COPD. The examiner explained that the pulmonary function test suggested COPD due to smoking. The Veteran had a history of smoking one pack per day since he was a teenager. A disability attributable to use of tobacco products during service may not be service connected. 38 C.F.R. § 3.300. The examiner noted there was no history of chronic respiratory difficulties in service including the entrance and the separation examination. The Veteran’s treatment in service consisted of multiple treatments for the common cold. There was no history of respiratory infections such as the need for antibiotics or an inhaler. While the Veteran was seen once in March 2007 for a scratchy throat, the VA examiner did not find any evidence of chronic respiratory infections and there were no current findings on the examination. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, while the Veteran has described symptoms such as trouble breathing through his nose and allergies, he is already service connected for allergic rhinitis. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that symptoms began during service. As a lay person, the Veteran is not competent to independently render a medical diagnosis or provide the specific etiology of a condition as these are medically complex issues. Davidson, 581 F.3d 1313. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The Board ultimately assigns greatest probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In summary, the Veteran’s COPD is the result of tobacco use and cannot be service connected. His allergic rhinitis is already service connected, and his sinusitis is discussed below. He does not have any other current respiratory disorder that onset during service or is related to an in-service event, injury or disease. The preponderance of the evidence is against the claim for service connection for a respiratory disability and that claim is denied. 4. Sinusitis The Veteran asserts he currently has a chronic sinusitis disability that began in service. During service, the Veteran was treated on several occasions for sinus/rhinitis or upper respiratory infection symptoms with or without headaches starting in September 1975. The March 1984 separation examination evaluation of the sinuses was normal. In a corresponding report of medical history, the Veteran specifically denied having had sinusitis or sinusitis symptoms. If sinusitis was present during service, the Board would expect the Veteran would have responded “yes” when asked if he had sinusitis at separation because a reasonable person would have interpreted the question to include any sinus symptoms. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having sinusitis. He also denied having any illness or injury not already noted on the report of history. Currently, the Veteran reports trouble breathing through the nose. Sometimes it affects his throat and he has coughing and allergies. He also experiences wheezing. The Veteran presented for a March 2020 VA examination, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner diagnosed allergic rhinitis but concluded the Veteran did not have chronic sinusitis. The examiner recognized in-service treatment for the common cold but also noted there was no history of sinus infection requiring medication. The examiner explained that the Veteran did not have any findings, signs, or symptoms that would support a diagnosis of sinusitis. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination and interview of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. In the absence of a current disability or diagnosis of a chronic sinus disability, such as chronic sinusitis, service connection cannot be established. See Brammer, 3 Vet. App. at 225. There is no medical evidence showing chronic sinusitis or a sinus disability during or close in time to the appeal, and the Veteran, as a lay person, is not competent to provide such a diagnosis. Romanowsky, 26 Vet. App. at 294; Davidson, 581 F.3d 1313. Likewise, there is no showing of functional impairment of earning capacity due to sinus symptoms that are not already accounted for by the service-connected allergic rhinitis. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020). The Board ultimately assigns greatest probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale, which indicates the Veteran does not have a sinus disability. For the above reasons, the preponderance of the evidence is against the claim and service connection for sinusitis is denied. 5. Disability manifested by vertigo The Veteran asserts he has a disability manifested by vertigo related to service. He testified that he gets dizzy when standing up quickly which causes him to hold on to something. In service, the Veteran was treated once for dizziness in February 1979 which was attributed to heat exhaustion. In April 1983, the Veteran was hit in the back of the head with a bottle in the scalp/occipital region. There was a one-inch laceration which was sutured. The service treatment records do not indicate the Veteran experienced vertigo or dizziness after he was hit by the bottle. He reported sea sickness in his March 1984 separation history, but the physical examination was otherwise normal. Other than sea sickness, the Veteran did not report any vertigo and specifically stated he did not have dizziness or fainting spells. If vertigo or dizziness was present as a chronic symptom during service at times other than when he was at sea, the Board would expect the Veteran would have responded “yes” when asked if he had these symptoms at separation because a reasonable person would have interpreted the question to include these symptoms. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having dizziness or vertigo. He also denied having any illness or injury not already noted on the report of history. At a January 2020 VA examination, the Veteran was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. He noted the Veteran had one episode of dizziness in service attributed to heat exhaustion/dehydration. Thereafter, there is no further treatment or symptoms of dizziness or vertigo in service and as noted the Veteran reported only sea sickness but not dizziness at separation. According to the examiner, while vertigo can occur due to certain positioning of the head, such as turning the head, the examiner determined the Veteran’s description of symptoms does not support a vertigo diagnosis. Specifically, the VA examiner determined the Veteran did not have any peripheral vestibular or ear conditions causing vertigo, such as Meniere’s syndrome. In addition, specific tests which elicit vertigo were negative. Thus, the VA examiner concluded the Veteran did not have a disability causing vertigo. The Veteran is already service-connected for residuals of a head injury, rated as 10 percent disabling. Symptoms of intermittent dizziness are contemplated by that rating. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Subjective symptoms such as dizziness can be separately evaluated if they have a distinct diagnosis that can be evaluated under another diagnostic code. Id. Peripheral vestibular disorders are rated under Diagnostic Code 6204 and Meniere’s syndrome under Diagnostic Code 6205. 38 C.F.R. § 4.87. However, the most probative evidence in this case, the VA opinion offered after examination and interview of the Veteran, indicates that the Veteran does not have a diagnosed condition resulting in dizziness or vertigo. As such, a separate rating is not warranted. The Veteran’s statements have been considered but as a lay person he is not competent to offer a diagnosis accounting for his occasional dizziness. In summary, the Veteran’s dizziness is contemplated in his current disability rating for residuals of a head injury and he does not have any separate disability resulting in dizziness or vertigo. Accordingly, the preponderance of the evidence is against the claim for service connection for vertigo and that claim is denied. 6. Eye disability The Veteran asserts he has an eye disability related to service. He testified to seeing rainbows around lights and his vision getting blurred intermittently both during service and currently. During service, in November 1978, the Veteran complained he saw rainbows around lights and had blurred vision. He also complained of pain around his right eye. He was treated for similar complaints in August 1982, December 1982, and March 1983. The service medical providers considered the Veteran’s condition to be open angled glaucoma versus another condition called glaucomatocyclitic crisis characterized by a recurrent elevation in the corneal edema. He noted a history of his right eye being blurred at the time of his separation. Post-service treatment records, such as a November 2012 report, note similar complaints to those during service. During a June 2013 VA examination, the Veteran also reported seeing rainbows around lights and that his eyes will occasionally get red. The VA examiner only stated the Veteran did not have glaucoma and did not discuss the Veteran’s reports of eye symptoms such as the rainbows around lights. In March 2015, a medical provider noted the Veteran reported multicolored halos around lights and mild photophobia. He noted the Veteran’s symptoms were consistent with migraine headaches with an aura. The Veteran received a second VA examination in February 2020. The VA examiner stated there is no current diagnosis of glaucoma or closed angle glaucoma nor was there a history of any diagnosis for glaucoma or glaucomatocyclitic crisis (also known as Posner-Schlossman Syndrome). The examiner stated there was no documentation confirming either diagnosis. The examiner stated instead, the Veteran currently has a diagnosis of mild cataracts and pinguecula. The examiner attributed the Veteran’s decreased visual acuity to his cataracts. The examiner opined that the current eye disabilities were not related to service or caused or aggravated by service-connected conditions. The examiner explained that the Veteran’s cataracts are part of normal aging of the eye and not due to any trauma. Moreover, the examiner noted that pinguecula is a yellowish, raised growth on the conjunctiva which is a deposit of protein, fat, or calcium. The Veteran’s pinguecula were most likely due to sun exposure. According to the examiner, the Veteran’s in-service traumatic brain injury would not have caused or aggravated these conditions, nor would his service-connected disabilities. While glaucoma and glaucomatocyclitic crisis were suspected during service, the medical evidence does not demonstrate either of these conditions presently and the Veteran, as a lay person, is not competent to render a diagnosis related to the eye. Instead, the competent evidence shows the Veteran has cataracts and pinguecula. The Veteran’s symptoms related to blurred vision and rainbows around lights have been attributed to his service-connected migraine headaches with aura and not a separate eye disability. As to the current eye disabilities, the most probative evidence indicates these are unrelated to service, to include the traumatic brain injury during service, and are not caused or aggravated by a service-connected disability. Instead, they have been attributed to aging and sun exposure. Given the above, service connection for an eye disability must be denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.