Citation Nr: 21015839 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-27 708 DATE: March 18, 2021 ORDER Service connection for residuals of an in-service cytological procedure of the low back is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has residuals of an in-service cytological procedure that result in a functional impairment of the Veteran’s earning capacity. CONCLUSION OF LAW The criteria for service connection residuals of an in-service cytological procedure are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1981 to October 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision that declined to reopen the Veteran’s claim for service connection. The Veteran participated in a hearing before the undersigned in August 2019, and a transcript of this hearing has been associated with the record. This matter was previously before the Board in December 2019, when it reopened and remanded the claim in order to provide the Veteran with an additional examination addressing the nature of his claimed disability. The Veteran underwent such an examination in January 2020. The Board finds that there has been substantial compliance with the terms of its December 2019 remand, and it will proceed to a decision. To clarify the issue currently on appeal, the Board’s December 2019 remand characterized the Veteran’s claim as service connection for “residuals of a biopsy”. As is discussed in greater detail below, the weight of the medical evidence now demonstrates that the Veteran’s claim is more accurately described as one for residuals of an in-service cytological procedure of the low back, rather than a biopsy of the low back. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As the above three-element test shows, a valid claim for service connection requires proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  A “disability” is an 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, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Pain alone, even absent a current diagnosis, can itself result in functional impairment that may qualify as a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Turning to the facts in this case, in March 1985, the Veteran was noted to have small blisters on his tailbone, and the initial impression was rule-out herpes. An April 1985 cytology report indicates that a pathological examination of the Veteran’s lesions occurred The comments and recommendations associated with this report are largely illegible, with the exception of the word “negative”. In June 1985, the Veteran was noted to have a well-healed vesicular eruption with discrete scars over the upper coccyx region. In a July 1985 follow-up appointment, the Veteran was assessed with a resolved herpes process, characterized as either herpes zoster or herpes simplex. The Veteran was noted to have well-healed lesions. The Veteran’s service treatment records do not contain a separation examination, and, consistent with this absence, the Veteran stated in August 2019 that he did not participate in such an examination. Following the Veteran’s separation from service, in April 2010, the Veteran complained of a one-week history of lower back pain that was musculoskeletal, rather than dermatological, in nature. In May 2012, J.W., a private clinician, stated that the Veteran sought treatment for back pain in 1985, at which time “the doctor biopsied lesions from a rash on his lower back and tested for possible shingles”. The clinician noted that the Veteran’s surface back pain persisted throughout the years and, along with the Veteran’s complaints of musculoskeletal back pain, resulted in the Veteran missing up to two weeks of work a year. In November 2012, the Veteran stated that the clinician who conducted his in-service cytological procedure “damaged a nerve”. The Veteran stated that his back was sensitive to touch, and he could not lie on his back for any length of time without experiencing pain. In May 2017, the Veteran stated that his back had been “chronically and continually tender” from the time of his in-service biopsy.   During his August 2019 hearing, the Veteran stated that during service, the “doctor took a biopsy . . . and either scraped it or something because when she did it . . . hurt bad and it has been sore and tender ever since then”. The Veteran believed that the doctor “damaged some nerve endings or something”. The Veteran stated that he did not have “too much” difficulty standing, walking, and bending as a result of his claimed disability. The Veteran stated that he sought treatment for this condition “probably five years” after his separation from service. In August 2020, the Veteran stated that he thought that he had shingles during service despite the in-service clinician believing that he had herpes. The Veteran stated that the doctor “damaged the nerve endings” when she scraped his lesions “since Shingles are nerves”. The doctor did not use a knife or perform any cutting, which is why he did not have a scar. A VA examination was conducted in January 2020, at which time the Veteran reported developing pain in the skin of his low back where the April 1985 cytological examination occurred. The Veteran denied ever having received treatment for his dermatological pain. The Veteran stated that he experienced moderate, burning pain when the tender area of his back was touched and when lying down on his back. The Veteran stated that the tenderness in the skin of his back occasionally interfered with his sleep, but the Veteran denied experiencing functional loss in his back as a result of such pain. The Veteran further stated that his dermatological back pain would not functionally affect his ability to work as a firefighter. Upon physical examination, the examiner did not observe any scars on the Veteran’s back. The examiner noted that the Veteran had not, in fact, undergone an in-service “biopsy”, despite the Veteran’s characterizations of the procedure in this way, in part because such a procedure would be accompanied by additional evidence such as consent forms. Upon consideration of this evidence, the examiner opined that the Veteran did not have functional impairment associated with his claimed disability.   Turning to an analysis of this evidence, the weight of the evidence is against a finding that the Veteran has a current disability for which service connection may be granted. In making this determination, the Board is cognizant that the Veteran’s complaints of surface back pain alone may indeed constitute a disability, even absent a current diagnosis. See Saunders. With that said, such pain must result in a functional impairment of the Veteran’s earning capacity in order to constitute a disability. In this case, the weight of the evidence does not support a finding that the Veteran’s dermatological back pain has resulted in a functional impairment of the Veteran’s earning capacity. The Board has considered the May 2012 statement from a private clinician that the Veteran’s “musculoskeletal and surface back pain have . . . resulted in [the Veteran] missing approximately one to two weeks of work per year”. However, as noted above, the weight of the evidence, including the Veteran’s own lay statements, is against a finding that the Veteran’s surface back pain alone—without consideration of musculoskeletal complaints—has resulted in a functional impairment of his earning capacity. To the extent that the Veteran indeed believes that he has a disability, the Board notes that the Veteran is competent to testify as to readily observable symptoms. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran, as a layperson, is not competent, however, to report that any symptoms that he experiences rise to the level of a “disability” for VA purposes. Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish the presence of a disability affecting the skin of his low back or even functional loss associated with such symptoms, particularly when he has denied experiencing such symptoms to clinicians and not otherwise sought treatment for such symptoms. To this end, while the Veteran has complained of symptoms such as pain in the skin of his back with touch, he has additionally stated, for example in August 2019, that he did not have “too much” difficulty standing, walking, and bending as a result of his disability. The Veteran additionally denied experiencing functional impairment at the time of his January 2020 examination. The Board, therefore, finds that the weight of the evidence does not establish the presence of a disability in the form of residuals of an in-service cytological procedure of the low back, and the claim for service connection is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.