Citation Nr: 21015778 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-06 973 DATE: March 18, 2021 ORDER 1. Entitlement to service connection for drusen is dismissed. 2. Entitlement to service connection for pigmented choroidal nevus is dismissed. 3. Entitlement to service connection for diverticulosis is dismissed. 4. Entitlement to service connection for seborrheic keratosis with sebaceous cyst is dismissed. 5. Entitlement to service connection for a needle stick injury, also claimed as a sharp stick injury and including a mucosal splash, is denied. 6. Entitlement to service connection for leukoplakia is granted. FINDINGS OF FACT 1. A February 2021 rating decision granted service connection for drusen, pigmented choroidal nevus, diverticulosis, and seborrheic keratosis with sebaceous cyst. Thus, these claims for service connection have been granted in full. 2. The Veteran does not have current residuals related to in service needle stick injuries. 3. There is evidence of a diagnosis of leukoplakia during the period of active duty from April 2005 to July 2005, competent evidence from a medical professional that the Veteran still has leukoplakia, which is evidence of a nexus between the current disability and a period of active duty CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for drusen, pigmented choroidal nevus, diverticulosis, and seborrheic keratosis with sebaceous cyst have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (2019). 2. The criteria for entitlement to service connection for a needle stick injury, also claimed as a sharp stick injury and including a mucosal splash, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for entitlement to service connection for leukoplakia have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty and or active duty for training from March 2003 to March 2004, from April 2005 to July 2005, from May 2007 to September 2007, from May 2009 to September 2009, from May 2011 to August 2011, from August 2012 to January 2013, from February 2013 to October 2013, from December 2013 to January 2015, from June 2015 to November 2015, from June 2017 to August 2017, from September 2019 to December 2019, and from January 2020 to June 2020. The claims for entitlement to service connection for a needle stick injury and entitlement to service connection for a palpable nodule in the right mandibular vestibular mucosa-embedded scarring, previously denied as leukoplakia, were previously denied in final rating decisions dated in June 2008 and June 2006, respectively. As such, the issue had been adjudicated as to whether new and material evidence had been submitted to reopen the claim. However, the evidence associated with the claims file since the issuance of the previously noted rating decisions includes additional service treatment records (STRs). Such records were previously unavailable. As a result, the Board will adjudicate the issues on a de novo basis rather than on the basis of whether new and material evidence has been received. See 38 C.F.R. § 3.156(c). The Board acknowledges that additional VA treatment record have been associated with the claims file since the most recent statement of the case (SOC) was issued and the claims being transferred to the Board. However, in January 2021, the Veteran waived RO review of these records, and therefore, the Board will proceed with review. Dismissal 1. – 4. Entitlement to service connection for drusen, pigmented choroidal nevus, diverticulosis, and seborrheic keratosis with sebaceous cyst In November 2020, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim for the issues of entitlement to service connection for drusen, pigmented choroidal nevus, diverticulosis, and seborrheic keratosis with sebaceous cyst. In a February 2021 rating decision, service connection was granted for all of the aforementioned claims. The benefit sought, as it relates to these claims, has been granted in full. Therefore, the Board finds that these claims have been satisfied and there remains no issue in controversy. 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. In light of the full grant of benefits, there remains no allegation of error of fact or law for appellate consideration. Therefore, the appeals regarding the issue of entitlement to service connection for these claims are dismissed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 5. Entitlement to service connection for a needle stick injury, also claimed as a sharp stick injury and including a mucosal splash At the September 2020 hearing, the Veteran testified that he had accidental needle stick injuries during his active duty as a surgeon. He testified that after these incidents he had to get tested for HIV and hepatitis for approximately three years. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a needle stick injury. The reasons follow. The Board concludes that the Veteran does not have a current diagnosis related to needle stick injuries in service and has not had a disability at any time during the pendency of the claim to include symptoms that cause functional impairment of earning capacity. At the September 2020 hearing, the Veteran specifically testified that he did not have any scarring related to the needle stick injuries or any other symptomatology. The STRs, VA treatment records, and a November 2020 VA examination report do not document that the Veteran has been diagnosed with HIV, hepatitis, or any other infectious disease as a result of a needle stick injury, and the Veteran does not contend that he has received any diagnosis as a result of a needle stick injury. The Board acknowledges that the Veteran experienced multiple needle stick incidents in the course of his service as a surgeon. However, service connection may be granted only for a current disability that was caused by or had an onset in service. As the Veteran does not have a current disability or any residuals from the in-service incidents and has not had one during the pendency of the appeal, service connection is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for service connection for a needle stick injury is denied. 6. Entitlement to service connection for leukoplakia Initially, the Board notes that in November 2020, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim, which included the issue of entitlement to service connection for a palpable nodule in the right mandibular mucosa-embedded scarring. In February 2021, the AOJ improperly took jurisdiction of this claim as an appeal was already pending before the Board, and a rating decision denied service connection for a palpable nodule in the right mandibular vestibular mucosa-embedded scarring. As the benefit sought was not granted, the Board maintains jurisdiction of this issue. At the September 2020 hearing, the Veteran testified that the leukoplakia is a mucosal abnormality of the oral cavity, which presents as a white color to the mucosa instead of pink. He stated it required surveillance and follow up by an oral surgeon and that he still had leukoplakia. He explained that the diagnosis of leukoplakia is not a dental issue, but rather a skin issue that occurs in the mouth. The Veteran’s STRs from the period of active duty from April 2005 to July 2005 document an onset of leukoplakia during that period of active duty. For example, June 2005 records document a history of leukoplakia, and on a July 2005 Report of Medical Assessment and Post-Deployment Health Assessment, the Veteran reported he had concerns about leukoplakia. In December 2005 VA treatment records, it was documented that a July 2005 biopsy noted white lesions and plaque in the mouth showing clinical leukoplakia or frictional keratosis from cheek biting. This record suggests a potential onset in June or July 2005 of leukoplakia, which would be during a period of active duty. As stated above, at the December 2020 hearing, the Veteran testified that he still has leukoplakia. The Veteran is a physician and is competent to diagnose leukoplakia. Thus, as the record currently stands, there is evidence of leukoplakia during a period of active duty, a current diagnosis of leukoplakia, and competent evidence from a medical professional that the Veteran still has leukoplakia, which is evidence of a nexus between the current disability and a period of active duty. Therefore, after a careful review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether leukoplakia had its onset during a period of active duty. As a result, service connection for leukoplakia is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.303. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Keninger, 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.