Citation Nr: 21024936 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-18 444 DATE: April 27, 2021 ORDER Service connection for low back disorder, diagnosed as degenerative arthritis of the spine, is granted. Service connection for left shoulder disorder is denied. Service connection for right shoulder disorder is denied. Service connection for left knee disorder is denied. REMANDED Service connection for skin disorder, diagnosed as psoriasis, remanded. Service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s back condition had its onset in service. 2. The record does not show that the Veteran’s bilateral shoulder conditions had their onset in service or are related to service. 3. The preponderance of the evidence shows that the Veteran’s left knee condition had its onset in service or is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the spine have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral shoulder conditions have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left knee condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1977 to July 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran was scheduled for a Board hearing. However, the record shows that the he failed to report to this hearing and to this date no good cause or reasonable explanation has been provided or requested another Board hearing. As such, there is no outstanding request for a Board hearing. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). The United States Court of Appeals for the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Spine The Veteran reports that service connection for his back condition is warranted. In support, he stated at his December 2019 VA examination that during service he worked as a diesel mechanic and while pulling a transmission he suffered a back injury and has had back problems ever since. See VA medical examination (December 2019). Moreover, his service treatment records show that he suffered from back pain in service. See STR (November 1981). Additionally, the record confirms the Veteran’s diagnosis and VA medical treatment for the claimed condition. See VA medical treatment record (January 2020). The Veteran was diagnosed with degenerative arthritis of the spine. See VA medical examination (December 2019). Thus, the Veteran has a current condition and establishes the first element for service connection. Further, the service treatment records show he suffered from back pain in service. See STR (November 1981). The Veteran’s records show complaints of back pain and treatment. Further, the Veteran explained his back problems in service and treatments thereafter. See VA medical examination (December 2019) and see also Appellant’s brief (January 2019). The evidence shows that the Veteran’s back condition is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). The Board finds that the evidence linking the Veteran’s back condition to service is probative, competent and credible. Further, the Board also finds that the competent and credible medical and lay evidence, shows that his back condition began during service and have been recurrent since that time. The Veteran is competent to report his back condition that began in service and the Board finds the Veteran’s statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the medical and lay evidence is consistent with other evidence of record, and further finds that it is competent and credible. The Board finds that the evidence shows that the Veteran’s back condition had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s degenerative spine condition had its onset during his period of military service. As such, service connection is warranted. See 38 C.F.R. § 3.303(a). 2. Left and right shoulder The Veteran seeks service connection for a bilateral shoulder condition. In support, he stated at his December 2019 VA examination that during service he worked as a diesel mechanic and due to the heavy lifting involved in his duties, he injured both shoulders and has had shoulder problems ever since. See VA medical examination (December 2019). Additionally, the record confirms the Veteran’s diagnosis and VA medical treatment for the claimed condition. See VA medical treatment record (October 2006 and May 2013). In February 2019, the Board remanded these issues with instructions for the examiner to consider the Veteran’s contentions, medical and lay evidence and to indicate if the condition is related to service. Subsequently, in December 2019, the Veteran was provided a VA examination and the examiner noted that the Veteran had a diagnosis of bilateral rotor cuff tendonitis. Additionally, the examiner opined that his bilateral shoulder condition was less likely than not incurred or caused by service. The rationale was that his first occurrence of shoulder pain was 22 years after his military service and there is no medical or lay evidence of these conditions in or after service until 2004. See VA medical examination (December 2019). The Board finds that the evidence on record does not show treatment or a diagnosis for a bilateral shoulder condition or functional impairment in service or that such condition is related to service or occurred within one year after service. As such, service connection is not warranted. The Board acknowledges that the Veteran reported that his bilateral shoulder condition started in service. However, the evidence does not show that the Veteran suffered from a bilateral shoulder condition or functional impairment in service or within one year after service. Indeed, the evidence shows complaints of bilateral shoulder pain and functional impairment around 2004, more than 20 years after service. Therefore, service connection is not warranted since the record does not show that the Veteran’s bilateral shoulder condition started in service or within one year after service. In light of the forgoing, the Board finds that the December 2019 VA examinations and the absence of medical evidence reflecting that his bilateral shoulder condition is related to service to be persuasive and of the greatest probative value. It is apparent that the Veteran’s bilateral shoulder condition is not related to service, thus, service connection is not warranted. As such, the preponderance of the evidence is against the claim of service connection. Therefore, the Veteran does not warrant service connection for his bilateral shoulder condition. 3. Left knee The Veteran seeks service connection for a left knee condition. In support, he stated at his December 2019 VA examination that during service he worked as a diesel mechanic and due to the heavy lifting involved in his duties, he injured his left knee and has had knee problems ever since. See VA medical examination (December 2019). Additionally, the record confirms the Veteran’s diagnosis and VA medical treatment for the claimed condition. See VA medical treatment record (February 1988 and March 2015). In February 2019, the Board remanded this issue with instructions for the examiner to consider the Veteran’s contentions, medical and lay evidence and to indicate if the condition is related to service. Subsequently, in December 2019, the Veteran was provided a VA examination and the examiner noted that the Veteran had a diagnosis of bilateral knee strain. Additionally, the examiner opined that his knee condition was less likely than not incurred or caused by service. The rationale was that after his military service in 1988 the Veteran had a car accident and suffered a left knee contusion. The next complaint of knee pain in the record was in 2007 and there is no medical or lay evidence of this condition in or after service until 2007. See VA medical examination (December 2019). The Board finds that the evidence on record does not show treatment or a diagnosis for a left knee condition or functional impairment in service or that such condition is related to service or occurred within one year after service. As such, service connection is not warranted. The Board acknowledges that the Veteran reported that his knee condition started in service. However, the evidence on record does not show that the Veteran suffered from a knee condition or functional impairment in service or within one year after service. Indeed, the evidence shows complaints of knee pain and functional impairment after his military service around 1988 after a car accident. Therefore, service connection is not warranted since the record does not show that the Veteran’s left knee condition started in service or within one year after service. In light of the forgoing, the Board finds that the December 2019 VA examination and the absence of medical evidence reflecting that his knee condition is related to service, to be persuasive and of the greatest probative value. It is apparent that the Veteran’s left knee condition is not related to service, thus, service connection is not warranted. As such, the preponderance of the evidence is against the claim of service connection. Therefore, the Veteran does not warrant service connection for his left knee condition. REASONS FOR REMAND 4. Psoriasis and hypertension The Veteran reported that service connection is warranted for his psoriasis condition since it started in service due to exposure to poison ivy, oak and shrubbery during a field exercise and have continued ever since. In support, the medical record is well documented with his skin problems and treatments. See VA medical treatment record (April 2013). Moreover, his service treatment record confirms the Veteran reports of skin problems and treatment in service. See STR (May and December 1981). In February 2019, the Board remanded this issue with instructions for the examiner to consider the Veteran’s contentions, medical and lay evidence and to indicate if the condition is related to service or his exposure in service. Subsequently, in December 2019, the Veteran was provided a VA examination and the examiner noted that the Veteran had a diagnosis of psoriasis. Moreover, the examiner stated that he was not a dermatologist, but the research performed indicated that psoriasis and poison oak might have a protein in common. Lastly, the examiner opined that the Veteran’s skin condition was less likely than not incurred or caused by service and there is no casual relation between psoriasis and poison oak. However, the Board finds that the examiner’s rationale is not complete and clear in his findings. Thus, the Veteran should be provided another VA examination with a skin specialist, preferably a dermatologist, that clarifies if his poison oak, ivy and shrubbery exposure in service can cause his psoriasis. Additionally, the examiner should opine if it is at least as likely as not that the symptoms experienced in service, detailed in his service records, point to the Veteran having psoriasis in service, but it was not correctly diagnosed. Thus, this issue must be remanded for further medical examination. In addition, the Veteran reported that service connection is warranted for his hypertension condition since is related to his skin condition. In support, the record shows a diagnosis and treatment for his hypertension and an above average blood pressure reading in service. See VA medical treatment record (April 2013) and see also STR (February 1981). Moreover, the December 2019 VA examiner stated that there could be a relation between psoriasis and hypertension. The examiner also noted that studies have shown that hypertension is prevalent among patients with psoriasis. Thus, the Board finds that the Veteran’s hypertension claim is inextricably intertwined with the readjudication of the matters on remand and an opinion should be rendered to determine if his skin condition and hypertension are related or caused by one or the other or their respective medical treatments. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Additionally, the Board invites the examiner to consider and opine about the medical and lay evidence of the onset of his condition. As there is no adequate examination to determine the nature of his psoriasis and the possible relation to his skin problems in service, as well, as the possible relation of his skin condition and hypertension, a remand is necessary to have the Veteran examined and for an examiner to review his claims folder and provide opinions necessary to adjudicate this appeal. The matters are REMANDED for the following action: 1. Obtain complete VA and Non-VA treatment records of the Veteran’s psoriasis and hypertension conditions. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, of the onset, nature and extent of his psoriasis and hypertension problems. The Veteran should also be invited to submit medical evidence addressing his psoriasis and hypertension conditions. The Veteran should be provided an appropriate amount of time to submit this lay and medical evidence. 3. Schedule a VA examination for his skin and hypertension conditions (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner to determine the onset and nature of his skin problems and hypertension, as well as any possible relation between his psoriasis and hypertension. A diagnosis of psoriasis should be ruled in or excluded. The examiner should opine if it is at least as likely as not that his psoriasis has any relation to his documented skin problems in service, as well as the possible relation of his skin condition and hypertension, and if one is caused by the other or their respective medical treatment. The examiner should provide a full description of his skin and hypertension problems and report all signs, possible relations, and symptoms necessary for evaluating the Veteran’s disabilities. In doing so, the examiner must specifically acknowledge and discuss the Veteran’s credible medical and competent lay reports of the onset and nature of his conditions. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- Associate 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.