Citation Nr: 21026587 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-49 156 DATE: May 3, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disorder is denied. 2. Entitlement to service connection for a left shoulder disorder is denied. 3. Entitlement to service connection for a right shoulder disorder is denied. 4. Entitlement to service connection for a ventral hernia is denied. 5. Entitlement to service connection for urethritis is denied. 6. Entitlement to service connection for hemorrhoids is denied. 7. Entitlement to service connection for a chronic skin rash disorder is denied. REMANDED 8. Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a lumbar spine disorder, a right or left shoulder disorder, or a ventral hernia is etiologically related to the Veteran's active service. 2. The Veteran is not shown to have a current diagnosis of urethritis or a chronic skin rash disability. 3. The preponderance of the evidence is against a finding that any current, hemorrhoid disability is etiologically related to the Veteran's active service. chronic skin rash disorder. CONCLUSIONS OF LAW 1. Service connection for a lumbar spine disorder is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 2. Service connection for a left shoulder disorder is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 3. Service connection for a right shoulder disorder is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 4. Service connection for a ventral hernia is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 5. Service connection for urethritis is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 6. Service connection for hemorrhoids is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 7. Service connection for a chronic skin rash disorder is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active service from May 1961 to May 1968. This appeal is from a September 2015 rating decision issued pursuant to a special review ordered in 2014. In January 2021, a hearing in these matters was held before the undersigned; a transcript is in the record. At the hearing, the Veteran requested, and was granted, a 90-day abeyance period for submission of additional evidence. No additional evidence has been received. This case has been advanced on the Board's docket. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed chronic diseases (including arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time following service (one year for arthritis). 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b) where a condition in service is noted, but is not, in fact, shown chronic, or where a diagnosis of chronicity may be legitimately questioned, service connection may be established by showing continuity of symptomatology. The continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) apply only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Lumbar Spine and Right and Left Shoulder Disorders The Veteran asserts (see January 2021 Board hearing testimony) that he injured his back and shoulders in service, but did not seek treatment for the injuries because he was a Marine, and was told to not complain. The Veteran's STRs show he was seen for back pain in May 1965 and reported having a backache for six to seven months. Later that month, on an annual physical examination, his spine was normal on clinical evaluation. A December 1965 STR notes he was seen for right shoulder pain. Right rotator cuff tenonitis was diagnosed. His STRs do not show any further notation of complaints, treatment, or diagnosis pertaining to the lumbar spine or either shoulder. On May 1968 service separation examination, his spine and upper extremities were normal on clinical evaluation; no back or shoulder complaints were noted. The earliest postservice notation of back complaints/symptoms in the record is in July 1983 (15 years following separation from active duty), when the Veteran reported having had back pain for several months. An August 1988 lumbar spine x-ray found no abnormality. The first notation of shoulder complaints/symptoms in the record is in March 1999 (31 years following separation from active duty), when he reported left shoulder pain. Degenerative joint disease was diagnosed. On November 2003 VA examination, the Veteran reported having back problems since the 1970s from lifting heavy parts for heavy equipment at work. He reported that he fell from a truck in 1991 and landed on his right shoulder, and that his left shoulder pain began approximately in 1996 or 1997. A lumbar spine x-ray showed degenerative changes. Bilateral shoulder x-rays showed minimal degenerative changes. In February 2004, the Veteran reported to the Social Security Administration (SSA) that he had back pain from lifting heavy equipment parts during his active service, that later the pain started in his shoulders. On April 2013 VA examination, the Veteran reported that his back and shoulder problems began in the 1980s. He denied having any acute or traumatic injuries to his low back. He related that his back and shoulders began bothering him at the same time. He indicated that his left (dominant) shoulder was worse than the right. The diagnosis was thoracolumbar spine and bilateral shoulder degenerative disc and joint disease. Upon review of the claims file and interview and examination of the Veteran, the examiner opined that the Veteran's lumbar spine disorder and bilateral shoulder disorders were less likely than not due to his active service. The examiner noted that in May 1965 the Veteran had a backache for six months, which was an acute and transitory and resolved without residuals (as an examination later that month did not note any back complaints or conditions). The examiner explained that in December 1965 the Veteran was seen for right shoulder tendinitis, which was an acute and transitory condition that resolved without residuals. The examiner observed that on the Veteran's May 1968 service separation examination, there were no complaints, defects, or diagnosis pertaining to a lumbar spine or shoulder disability. The examiner opined that the etiology of the Veteran's lumbar spine disorder was in his occupational history after 1968 (noting that the Veteran worked with forklifts and cranes and also in the mining industry). A chronic back or shoulder disability was not manifested in service. While the record shows he was seen for back and shoulder complaints (and right shoulder tendinitis was diagnosed), that was in 1965, and he served for approximately two and a half more years after that with no further related complaints or symptoms noted. Furthermore, his upper extremities and back were normal on service separation examination clinical evaluation. Therefore, the complaints in service are shown to have been acute, and not reflecting an underlying back or shoulder disability. Regarding, the right shoulder tendinitis diagnosed in service a medical provider has opined that by its nature, it is an acute condition that resolves with treatment. The Veteran has not submitted any competent (medical opinion) evidence to the contrary. There is also no evidence in the record that arthritis of the spine or a shoulder was manifested in the first postservice year (by the Veteran's own reports earliest (and later) reports he began noticing back/shoulder complaints and symptoms in the 1980's, more than 15 years after service (and in those early accounts he attributed the complaints to heavy lifting in a postservice occupation. Consequently, service connection for a back or right or left shoulder disability on the basis that such disability was shown as chronic in service, on a chronic disease presumptive basis, or based on continuity (for arthritis of the back and shoulders is not warranted). Whether under such circumstances a current back or shoulder disability (to include the arthritis which has been found on X-rays) is etiologically related to physical activities in service or acute injuries in service (the Board has no reason to question the Veteran's reports of a fall from a truck in service -however, there is no evidence that such fall resulted in a chronic disability), rather than to postservice etiological factors is a medical question (and requires medical expertise). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is a layperson. He has not presented any competent (medical opinion or treatise) evidence in support of his theory of entitlement. Thus, his own opinion has no probative value in these matters. The competent (medical) evidence in the record that directly addresses the matter of a nexus between these claimed disabilities and the Veteran's service is found in the finds and opinions of the November 2003 and April 2013 VA examiners. X-rays on November 2003 VA examination confirmed the Veteran has current back and right and left shoulder disabilities. He reported then that he started having back problems in the 1970s (years after service) from his duties at work and started having shoulder problems after a falling from a truck in the 1990s (decades after service). The examiner accepted the Veteran's then reports at face value; the Board has no reason to question what was then noted. The following year when the Veteran was seeking SSA disability benefits, in history he provided he attributed his lumbar spine disability to lifting during his active service (the etiology of his back disability was addressed in a medical opinion at the time). On April 2013 VA examination, the examiner concluded that the Veteran's lumbar spine disorder and bilateral shoulder disorders were less likely than not due to the Veteran's active service. The opinion (against the Veteran's claim) reflects familiarity with the entire record, including the Veteran's accounts, and includes rationale that cites to supporting clinical and factual data. It identifies an alternate, nonservice-related, etiology for the Veteran's current back and shoulder disabilities, namely his lengthy postservice employment history in physically-demanding occupations (to which, as noted above, the Veteran himself had initially, before engaging in the compensation-seeking process, attributed the current complaints. The Board finds the April 2013 VA medical opinion probative evidence in this matter. As there is no competent evidence to the contrary, the Board finds it persuasive. Considering the foregoing, the Board concludes that the preponderance of the evidence is against these claims. Accordingly, the appeals in these matters must be denied. Ventral Hernia The Veteran alleges (see January 2021 Board hearing testimony) that his ventral hernia resulted from heavy lifting in service. He testified that in his service as a Marine, he was told not to complain (by inference alleging he had a ventral hernia disability in service, but did not report it). The Veteran's STRs do not show findings or a diagnosis of a hernia. They show that in March 1968, he reported pain under his testicles after lifting heavy objects. On May 1968 service separation examination, his abdomen and viscera (including hernia) were normal on clinical evaluation; no complaints pertaining to a hernia were noted. Postservice (January 1985, August 1988, May 2002, and January 2004) abdominal examinations do not note a hernia. The earliest notation of a hernia in the record is in January 2005 (some 38 years after the Veteran's active service) when a history of hiatal hernia (a different disability than a ventral hernia) was noted. On August 2013 VA examination, the Veteran reported that he was told in 2004 that he had at least two or three hernias in his lifetime. The diagnosis was ventral hernia. Upon review of the claims file and interview and examination of the Veteran, the examiner opined that the Veteran's ventral hernia was less likely than not due to the Veteran's active service. The examiner noted that the Veteran reported testicular pain after heavy lifting in service, and further noted that the Veteran's May 1968 service separation physical did reveal any hernia complaints or pathology. The examiner noted that the first documentation of abdominal abnormalities was in January 2005, and observed that the Veteran's civilian employment after service included working in warehouses with forklifts and cranes and working in the mining industry that involved manual labor and heavy lifting. The examiner opined that the Veteran's civilian employment and/or the normal aging process appeared to be the causative factor in the development of his current ventral hernia. It is not in dispute that the Veteran has a current diagnosis of a ventral hernia. It is also not in dispute that he was seen for a complaint of sub-testicle pain after heavy lifting in service. However, a hernia was not then found or diagnosed, and on service separation examination, related clinical evaluation, including for hernias, was normal. Thus, service connection for a ventral hernia on the basis that such was first shown in service and has been in existence since is not warranted. Based on the record, it may be conceded (and therefore is not in dispute) that the Veteran did some heavy lifting in service. The record clearly shows that his postservice occupations were physically demanding, of a type that would involve considerable heavy lifting. Whether, considering the factual data, the Veteran's current ventral hernia may be etiologically related to his service is, for the most part, a medical question, that requires medical expertise (although the lengthy postservice interval before a ventral hernia is first clinically shown may of itself be evidence weighing against a finding of service-connection) See Jandreau, 492 F.3d 1372. The Veteran has not submitted any competent (medical opinion or treatise) evidence supporting that his ventral hernia is etiologically related to his active service (attributable to heavy lifting therein). Because he is a layperson, his own opinion in the matter has no probative value. The Board finds that the most probative evidence in the record regarding the etiology of the Veteran's ventral hernia, is in the opinion of the August 2013 VA examiner. The opinion reflects familiarity with the Veteran's claims file (what is shown therein), and in particular his complete medical history (as it relates to ventral hernia). The provider concluded that the Veteran's ventral hernia was less likely than not related to the Veteran's active duty service. The rationale provided cited to supporting clinical data, including that while the Veteran was seen for a complaint of sub-testicle pain after heavy lifting in service, a hernia was not then found/diagnosed, and that a hernia was not noted on service separation examination (which included clinical evaluation specifically for hernia). The examiner identified a more-likely postservice etiology for the Veteran's ventral hernia (a lengthy postservice history of employment in physically-demanding, including involving heavy lifting occupations. The Board finds the opinion to be persuasive. Considering the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Accordingly, the appeal in this matter must be denied. Urethritis and Hemorrhoids The Veteran testified at the January 2021 Board hearing that he was seen in service (and was provided medication) for urethritis, and that after service he continued to have urinary tract-related pain, but did not seek further treatment for urethritis. He testified that he had hemorrhoids in service (which he self-medicated), but for which he did not seek treatment. The Veteran's STRs show that in February 1964 he was seen for a complaint of generalized abdominal pain, and on examination it was noted that pain was localized in the rectal area; no diagnosis was noted. In June 1963, he underwent elective circumcision. On May 1965 periodic examination, his genitourinary system and anus and rectum were normal on clinical evaluation; no pertinent complaints were noted. In December 1966, probable non-specific urethritis was diagnosed. and treated with medication. On May 1968 service separation examination, his genitourinary system and anus and rectum were normal on clinical evaluation, and no pertinent complaints were noted. Following service, the Veteran was seen in March 1983, for a complaint of occasional rectal bleeding; no diagnosis was given. In January 1985, he was found to have a ureteral stone and underwent removal. In and February 2001, he was noted to have hemorrhoidal changes. In February 2004, hemorrhoids were diagnosed. Subsequent postservice medical records do not show any complaints, treatment, or diagnosis of urethritis or hemorrhoids. On August 2013 VA examination, the Veteran stated that he developed urethritis and hemorrhoids from physical straining due to his duties in service. The diagnoses were resolved non-specific urethritis and no recurrent hemorrhoids or residuals. The examiner noted that on examination, the Veteran was found to have hemorrhoidal skin tags but no active hemorrhoids. Upon review of the claims file and interview and examination of the Veteran, the examiner opined that the Veteran's claimed urethritis and hemorrhoids were less likely than not due to his active service. The examiner observed that there was no evidence-based support that excessive straining leads to inflammation or purulent discharge from the genitourinary tract. The examiner opined that the Veteran's diagnosis of non-specific urethritis in-service was most likely due to a bacterial or inflammatory process, and that a bacterial process was the most likely causative factor. The examiner reported that there was no documentation of the Veteran having hemorrhoids during active service. The examiner indicated that a February 1964 rectal examination did not support a diagnosis of hemorrhoids. The examiner reported that the Veteran's civilian employment following his separation from active service included working in warehouses with forklifts and cranes and working in the mining industry that involved manual labor and heavy lifting. The examiner reported that the Veteran's civilian employment appeared to be a causative factor in his development of hemorrhoids in 1983. The Veteran has not submitted any competent (medical opinion) evidence that he has urethritis or hemorrhoids which might be etiologically related to his active service. The record contains no evidence that the Veteran has a current diagnosis of urethritis. The August 2013 VA examiner reviewed the entire record, including the diagnosis of urethritis service, and opined that it had resolved without residuals, and was likely due to a bacterial infection then which was treated with medication (and would not be due to straining in service as alleged). The examiner also noted that the Veteran did not have a diagnosis of hemorrhoids during his active service, and currently did not have hemorrhoids (but had hemorrhoidal tags -suggestive of a history of hemorrhoids) and opined that the hemorrhoids which were first noted in 1983 were likely due to the Veteran's duties in his postservice occupations. The August 2013 examiner is shown to have reviewed and considered all pertinent evidence of record. The rationale for the nexus opinions against the claims cites to supporting clinical data and medical principles and identifies the nonservice-related etiology for the Veteran's, and the Board finds the opinion adequate for rating purposes. The diagnoses and etiology of urethritis and hemorrhoids are complex medical questions that require medical expertise (urethritis informed by diagnostic studies). The Veteran is a layperson and does not profess to have any medical training or expertise. He does not cite to supporting clinical data or medical opinion or treatise evidence, and his own opinion in the matters has no probative value. See Jandreau, 492 F.3d 1372. The threshold requirement for substantiating a claim of service connection is that there must be competent evidence of the disability for which service connection is sought. In the absence of proof of a current disability, there is no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Regarding urethritis, there is no competent evidence that show that the Veteran has a current diagnosis of urethritis; the record does not show such diagnosis, and he does not point to any medical provider who diagnosed or treated a current urethritis. Accordingly, he has not met the threshold legal requirement for substantiating a claim of service connection. Regarding hemorrhoids, while the record is equivocal whether the Veteran has such disability (as current active hemorrhoids were not found, but he was found to have hemorrhoidal tags, suggestive of residual pathology from hemorrhoids), it is clear that the evidence presents no basis for finding that such disability may be etiologically related to his active service. Hemorrhoids in service or soon thereafter are not shown (a VA examiner has opined that the 1964 complaints of rectal area pain do not support a diagnosis of hemorrhoids), and a VA examiner has opinion that the hemorrhoids found in 1983 (15 years after service) and thereafter are likely due to the Veteran's postservice physically-demanding occupations. Considering the foregoing, the Board finds that the preponderance of the evidence is against these claims. Therefore, the appeals in these matters must be denied. Chronic Skin Rash Disorder The Veteran alleges (see January 2021 Board hearing testimony) that he had skin rashes in service, i.e., that a skin rash disability had its onset in service, and by inference that he did not report it because he was a Marine and trained to not complain. The Veteran's STRs do not show any complaints, treatment, or diagnosis of a chronic skin rash disorder during his active service. On May 1968 service separation examination, his skin was normal on clinical evaluation; no pertinent complaints were noted. Postservice treatment records show that in January 2000, the Veteran reported that he developed a rash from a prescribed medication, but stopped taking the medication and the rash resolved. On November 2003 VA examination, the Veteran's skin was found to be normal. The Veteran was found to have a rash in February 2004, January 2005, and November 2011. He was noted to have a rash in May 2014, and he was told to adjust his medications. In March 2016, he had a rash again and was advised it could be due to medications or due to sun exposure. November 2017, October 2019, April 2020, and May 2020, the Veteran's medical records show that he did not have a rash. The Veteran has not submitted any competent (medical opinion) evidence that he has/or has had a diagnosis of a chronic skin rash disorder. The Veteran's STRs do not show a chronic skin rash disorder. The Veteran's postservice medical records do not show a chronic skin rash disorder. While he has been seen and treated for rashes postservice, they were invariably noted to be due to medications or environmental exposures or sun, and thus acute, resolving with treatment or removal of the triggering of environmental factor. Nothing about the rashes noted indicates they may have been etiologically related to the Veteran's service. The diagnosis and etiology of a chronic skin rash disorder are complex medical questions which require medical expertise. The Veteran is a layperson and does not profess to have any medical expertise. He does not cite to supporting clinical data or medical opinion or treatise evidence (showing or suggesting that he has/might have a chronic skin rash disability that is etiologically related to his service; his own opinion in the matter has no probative value. See Jandreau, 492 F.3d 1372. The threshold requirement for substantiating a claim of service connection is that there must be competent evidence of the disability for which service connection is sought. In the absence of proof of a current disability, there is no valid claim for service connection. Boyer, 210 F.3d 1351, 1353; Brammer, 3 Vet. App. 223, 225. Here, it is not shown by competent evidence that at any time for consideration the Veteran was found to have a current chronic skin rash disorder. Thus, the threshold requirement the claim of service connection is not met. The preponderance of the evidence is against the claim. Accordingly, the appeal in the matter must be denied. REASONS FOR REMAND Regarding the claim of service connection for a cervical spine disorder, the Veteran filed such claim in October 2012, which was denied by a September 2015 rating decision. In March 2016, he filed a notice of disagreement (NOD) with the September 2015 rating decision (that encompassed a cervical spine disability). While a statement of the case (SOC) was issued in September 2018, a cervical spine disability was not addressed therein. A June 2020 supplemental SOC (SSOC) addressed the cervical spine disability claim. Under 38 C.F.R. § 19.31(a), a SSOC may not be used to announce a decision on an issue not previously addressed in a SOC. See Mayfield v. Nicholson, 499 F.3d 1317, 1324 (Fed. Cir. 2007). Consequently, a response (by SOC) to the Veteran's NOD in this matter remains pending. In such circumstances, a remand for issuance of a SOC is required. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). This issue will be fully perfected for consideration by the Board only if the appeal is perfected by a filing of a timely substantive appeal after the issuance of the SOC. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matter is REMANDED for the following: Arrange for any further development indicated, and issue a SOC addressing the claim of service connection for a cervical spine disability. The Veteran and his representative should be informed of the period of time afforded for timely filing a substantive appeal in the matter. If a timely substantive appeal is received, return the matter to the Board. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.