Citation Nr: 21021088 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 17-09 861 DATE: April 9, 2021 ORDER Entitlement to service connection for a skin disorder, to include as due to environmental hazards, is denied. Entitlement to service connection for a vertigo/dizziness disorder, to include as due to environmental hazards and/or tinnitus, is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for right lower extremity radiculopathy is denied. Entitlement to service connection for left lower extremity radiculopathy is denied. REMANDED Entitlement to service connection for sensorineural hearing loss is remanded. Entitlement to a disability rating in excess of 20 percent for lumbar muscle spasm is remanded. FINDINGS OF FACT 1. Skin disorder was not incurred in, aggravated by, or otherwise attributable to active duty service. 2. Vertigo/dizziness disorder was not incurred in, aggravated by, or otherwise attributable to active duty service. Vertigo/dizziness disorder was not proximately caused by, or aggravated by, tinnitus. 3. The Veteran does not have a current right knee disorder. 4. The Veteran does not have current right lower extremity radiculopathy. 5. The Veteran does not have current left lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin disorder have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2019). 2. The criteria for entitlement to service connection for a vertigo/dizziness disorder have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317, 3.304, 3.310 (2019). 3. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1101, 1105, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 4. The criteria for entitlement to service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019) 5. The criteria for entitlement to service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from May 2000 to January 2004 including service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) from an appeal of an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in March 2017. A hearing was scheduled for August 9, 2019; however, the Veteran failed to appear. On February 3, 2021, the Board sent the Veteran correspondence to clarify whether he still desired a hearing. As of the issuance of this decision, the Veteran has not indicated whether he desired a hearing. As more than 30 days have passed since the letter of clarification was issued, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d). Threshold Issue In its October 2008 rating decision, the RO denied some claims based on insufficient evidence that the Veteran had served in Southwest Asia. In December 2016, the RO received a file of the Veteran’s service personnel records that verified service in Iraq. Thus, the RO erred in its April 2015 rating decision in which it indicated that new and material evidence had not received to reopen the Veteran’s service connection claims for sensorineural hearing loss and a right knee disorders, as these are issues for reconsideration. Specifically, 38 C.F.R. § 3.156(c) requires VA to reconsider a claim “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.” Service Connection The Veteran asserts that the five disabilities on appeal were incurred in, aggravated by, or otherwise attributable to, active duty service. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § § 3.317(a) provides that VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that becomes manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021. A "qualifying chronic disability" is defined as: (A) an undiagnosed illness; or (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; or (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). Id. Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, as follows: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § § 3.317 (b). For purposes of this section, the term medically unexplained chronic multisymptom illness (MUMI) means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Evidence and Analysis The Veteran’s STRs show that the Veteran sought treatment for right knee pain in March 2001; a clinician suspected an medial collateral ligament (MCL) strain. In April 2001, the Veteran sought physical therapy (PT) for prevention and management of knee pain. In May 2001, the Veteran complained of large blisters on his feet and right knee pain; a clinician provided moleskins, arch supports, and a non-narcotic pain reliever. In June 2001, the Veteran sought treatment for a rash/bite on his hand; a clinician noted the presence of a palmar abscess on the right hand. At this time, a clinician prescribed an antibiotic and an antihistamine. A notation from January 2002 shows that the Veteran complained of bilateral knee pain; a clinician prescribed a non-narcotic pain reliever. Service personnel records show that the Veteran served as a military policeman in a unit that deployed to Iraq in approximately June 2003. Records dated in December 2003 referred to the Veteran as currently deployed to Iraq, although he may have been on emergency leave in Puerto Rico at an earlier date. The Veteran received an honorable humanitarian discharge. There is no record of a discharge physical examination. In a January 2006 VA assessment, a clinician indicated that the Veteran had no skin lesions or dryness, and the Veteran’s auditory canals appeared clean, with an intact tympanic membrane. The Veteran’s extremities showed no clubbing, cyanosis, or edema. The Veteran’s musculoskeletal system showed intact ranges of motion, adequate muscle tone, and no deformities. And, the Veteran showed no gross motor and sensory deficits. In a March 2006 VA audiology consultation note, a clinician noted that the Veteran complained of tinnitus. Upon September 2008 VA examination, a clinician noted that the Veteran endorsed right knee pain that began in 2001. On examination, the clinician indicated an absence of deformity, giving way, instability, stiffness, weakness, dislocation/subluxation, locking, effusion, flare-ups, and inflammation. The Veteran demonstrated flexion to 140 degrees. X-ray imaging showed no abnormalities. In April 2015, the Veteran wrote that he was continuously exposed to burn pits in Iraq. The Veteran contended that his exposure to burn pit smoke contributed to his disabilities. In August 2015, the Veteran was afforded a VA peripheral nerves examination. A clinician reviewed the claims file; considered the Veteran’s lay accounts; and conducted an evaluation. The clinician provided no current peripheral nerve disease/disability diagnosis. There were also no current symptoms of a peripheral nerve disability. In concluding remarks, the clinician indicated that there was no evidence of peripheral neuropathy. As there was no present peripheral neuropathy, the clinician indicated that it can have no connection to the Veteran’s back condition. In a thoracolumbar spine conditions examination of this same month, a clinician indicated that the Veteran did not have radicular pain or any signs or symptoms due to radiculopathy. In September 2015 correspondence, the Veteran, in pertinent part, reiterated his April 2015 contentions. In a December 2016 DRO Conference Report, a VA representative noted that the Veteran clarified that he had active duty service in Kuwait. The Veteran conveyed that his dizziness/vertigo could be related to service-connected tinnitus. In January 2017, the Veteran was afforded a VA skin conditions examination. The clinician diagnosed current folliculitis and ichthyosis vulgaris. The Veteran reported that he has suffered for many years from dry flaky skin on his legs and . intermittently, the flakes affected his arms. The Veteran presented photographs because the disease was not currently active. In the remarks section of the examination, the clinician wrote that folliculitis and ichthyosis vulgaris are diseases with a clear and specific etiology and diagnosis of these diseases in not caused by or the result of any specific exposure in southwest Asia. As a rationale, the clinician noted that there is no evidence in medical literature of a direct, etiological relationship between folliculitis and ichthyosis vulgaris and previous exposure to environmental hazards to which the Veteran might have been exposed during his deployment in Southwest Asia. And, there is no evidence that the Veteran received treatment for folliculitis and ichthyosis vulgaris in service. Ichthyosis vulgaris is an inherited skin disorder and folliculitis is caused by an infection of the hair follicles mostly from bacteria. In January 2017, the Veteran was afforded a VA right knee examination. The clinician provided no current right knee diagnosis. The Veteran endorsed that he has had right knee pain since 2001 and he endorsed flare-ups. On examination, the Veteran demonstrated normal ranges of motion, normal strength, and normal stability. The clinician provided a negative nexus opinion as there was no evidence of a current right knee disability. In January 2017, the Veteran was afforded a VA peripheral nerve examination. The clinician reported normal findings as to all radicular nerve groups. In January 2017, the Veteran was afforded a VA ear and vestibular conditions examination. The clinician provided a diagnosis of peripheral vestibular disorder. The Veteran reported that vertigo had onset during his basic training. The clinician opined that the current peripheral vestibular disorder was not related to tinnitus and/or hearing loss. Thus, peripheral vestibular disorder is less likely than not proximately due to or the result of the Veteran’s service-connected tinnitus. As a rationale for this negative nexus opinion, the clinician wrote that peripheral vestibular disorder and vertigo have causes that are medically unrelated to tinnitus or any changes in hearing, based upon current medical data. In February 2017 correspondence, the Veteran, in pertinent part, reiterated his earlier contentions. In a November 2017 statement, the Veteran wrote that after an ear infection in service he has suffered from imbalance and dizziness. He also wrote that marching impacted his right knee’s range of motion. In an April 2018 thoracolumbar spine conditions examination report, a clinician opined that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. In an April 2018 addendum, a VA clinician reiterated the negative nexus opinion as to diagnosed folliculitis and ichthyosis vulgaris. This clinician added that STR evidence relates to treatment for a right-hand abscess and is not analogous to the claimed and diagnosed folliculitis and ichthyosis vulgaris. The anatomical location of the diagnosed folliculitis and ichthyosis vulgaris is not related to the Veteran’s episode of right-hand abscess. Moreover, right-hand abscess is not known medically to cause folliculitis and ichthyosis vulgaris. The competent medical evidence shows diagnosis of folliculitis and ichthyosis vulgaris as well as peripheral vestibular disorder. As such, these disease entities do not constitute chronic undiagnosed or a diagnosed multisymptom illness without conclusive pathophysiology or etiology. Therefore, the provisions of 38 C.F.R. § 3.317(a)(1)(ii) are not for application for the claimed skin and vertigo/dizziness disorders. The Veteran contends that folliculitis and ichthyosis; peripheral vestibular disorder; a right knee disorder; right lower extremity radiculopathy; and left lower extremity radiculopathy were incurred in, aggravated by, or otherwise attributable to, active duty service. Nevertheless, as a lay person, this Veteran lacks the highly specialized medical training to render complex medical opinions as to etiology or causation. See Jandreau, supra. In the absence of proof of a present disability there can be no valid claim. See Brammer, supra. The pertinent medical evidence is summarized above. The competent clinicians of record, in whom the Board places substantial probative weight, have not provided current diagnoses of a right knee disorder, right lower extremity radiculopathy, or left lower extremity radiculopathy. Without current disabilities, the possibility of establishing service connection on any basis is not possible. See Brammer, supra. Thus, service connection for right knee disorder, right lower extremity radiculopathy, and left lower extremity radiculopathy must be denied. The present disability element of skin disorder (folliculitis and ichthyosis vulgaris) and vertigo/dizziness disorder (peripheral vestibular disorder) are present. However, the weight of evidence fails to establish in-service incurrences. The Veteran’s STRs show one occurrence of a right-hand abscess, which a competent clinician found is not related anatomically to folliculitis and ichthyosis vulgaris. And, STRs provide no evidence of complaints, treatment, or a diagnosis even suggestive of peripheral vestibular disorder. service connection cannot be established on a direct basis for any the Veteran’s for these disease entities. See id. Likewise, the weight of evidence fails to establish that peripheral vestibular disorder was either proximately caused by, or aggravated beyond its natural progression by, tinnitus. As noted above, a VA clinician opined that peripheral vestibular disorder and vertigo have causes that are medically unrelated to tinnitus, based upon current medical data. Thus, granting service connection on a secondary basis is not warranted. See Allen, supra. The preponderance of evidence is against the Veteran’s five service connection claims and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. REASONS FOR REMAND Regrettably, a remand is necessary in this case to ensure due process and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Sensorineural hearing loss The Veteran asserts that sensorineural hearing loss was incurred in, aggravated by, or otherwise attributable to, active duty service. A review of the evidence of record shows that the Veteran has been afforded several VA audiological examinations—in 2015, 2017, and 2018. None of the testing showed hearing loss that met the criteria for a disability, although some mild loss was noted at two frequencies in the left ear. In the 2015 examination report, the audiologist provided a positive nexus opinion; in the 2017 examination report, the audiologist provided indicated normal hearing acuity; and in the 2018 examination report, the audiologist provided a positive nexus opinion associated with the mild loss in the left ear that did not meet the criteria for disability. In this latter opinion, the audiologist indicated that. [I]t is well known that noise of high intensity, such as military-type noise and aircraft noise, cause significant damage to the inner structure of the ear, resulting in permanent hearing loss and/or tinnitus. This Veteran was exposed to high impact noise during his service. Therefore, it is reasonable to conclude that the Veteran was affected by this type of noise. In multiple lay accounts, the Veteran has indicated that his hearing loss has worsened. Indeed, the Veteran is competent to report discernable symptoms—hearing deficits. See Jandreau, supra. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. Id. As the 2018 VA audiologist and the Veteran have presented competent evidence associating the etiology of sensorineural left ear hearing loss with events in service, the requirements have been met for the third prong of McClendon. Notwithstanding the absence of test data to show a current hearing loss disability but resolving all doubt in the Veteran’s favor as he is reporting recurrent symptoms of a disability with medical opinion that supports some injury due to noise in service, the Board finds that the low threshold for a current examination is met. Disability rating in excess of 20 percent for lumbar muscle spasm The Veteran asserts that the 20 percent disability rating assigned to service-connected lumbar muscle spasm does not adequately contemplate the severity of his symptomatology and that a higher disability rating should be assigned. The Veteran was last afforded a VA thoracolumbar spine conditions examination in April 2018—almost three years ago. A review of the record shows that the Veteran continues to contend that his service-connected lumbar spine disorder has worsened in severity. The Veteran is competent to report discernable symptoms—pain and lumbar spine spasm. See Jandreau, supra. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran’s disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Here, the Veteran’s competent lay complaints indicate a worsening that triggers the need for VA examination to assess the current severity of the Veteran’s acquired psychiatric disorder. See 38 C.F.R. § 3.159 (c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. 2. After obtaining the necessary authorization from the Veteran and his representative, obtain and associate with the claims file any additional identified and relevant sensorineural hearing loss and lumbar spine disorder records. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Arrange for a VA audiological examination. The audiologist must review the Veteran’s claims file and indicate such review in the examination report. The audiologist must perform all requirement testing and interviewing audiologist and must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Upon completion of the above, to include a reconciliation of the findings in the 2015, 2017, and 2018 audiological examinations, the audiologist is asked to respond to the following: a. Whether it is at least as likely as not (50 percent or more) that the Veteran’s sensorineural hearing loss, if audiometrically determined to be such for VA purposes, was incurred in, aggravated by, or otherwise attributable to, service? 4. Arrange for a VA thoracolumbar spine conditions examination with an appropriate clinician to determine the current severity of the Veteran’s lumbar spine disorder. The clinician must review the claims file and indicate such review in the body of the examination report. All necessary testing, evaluation, and interviewing must be performed. The clinician must consider the following: with respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and non-weight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)) and pain on repetitive use and flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). If the clinician is unable to conduct the required testing or concludes that the required testing is not necessary in this case, she/he must clearly explain why this is so. The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the audiologist or clinician rejects the Veteran’s reports, she/he must provide an explanation for such rejection. Complete, clearly-stated rationales for the conclusions reached must be provided. Explanation are required that consider the record and pertinent audio-medical principles and the audiologist’s and clinician’s rationale should include citation to pertinent evidence and/or medical principles relied upon to form all opinions. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.