Citation Nr: 21026975 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-33 843 DATE: May 4, 2021 ORDER Entitlement to service connection for a skin condition (claimed as blisters on the neck), including as due to an undiagnosed illness, is denied. Entitlement to service connection for a cervical spine disorder, including as due to an undiagnosed illness, is denied. FINDINGS OF FACT 1. The most probative (competent and credible) evidence is against finding that the Veteran currently has a skin condition, including blisters on his neck, so no present skin disorder to relate or attribute to his military service. 2. The most probative evidence is against finding that his cervical spine disorder is attributable to his service, including to an undiagnosed illness or medically unexplained chronic multi-symptom illness. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for a skin condition, including as due to an undiagnosed illness. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria are not met for entitlement to service connection for a cervical spine disorder, including as due to an undiagnosed illness. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1989 to July 1993. This appeal to the Board of Veterans' Appeals (Board) is from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 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 relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain diseases or disabilities are considered "chronic", per se, including, as an example, arthritis, and therefore may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to as least 10-percent disabling) within a year of the Veteran's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection also may be granted on a presumptive basis for Persian Gulf War veterans who exhibit objective indications of a qualifying chronic disability, provided that such disability became 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, and which by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1); see also 81 Fed. Reg. 71,382 (Oct. 17, 2016) (extending the date by which a disability must manifest to a degree of 10 percent or more for purposes of 38 C.F.R. § 3.317, from December 31, 2016, to December 31, 2021). Unlike a claim based on direct service connection, in a claim based on a qualifying chronic disability under 38 C.F.R. § 3.317, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of presumptive service connection for Persian Gulf War veterans under 38 C.F.R. § 3.317, a "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). For purposes of 38 C.F.R. § 3.317, the term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs, and that has features such as fatigue, pain, and/or disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, are not to be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). The term "objective indications of chronic disability" includes 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). Additionally, disabilities that have existed for six months or more, as well as disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4) (providing that the six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established, as well, on a secondary basis for disability that is proximately due to, or the result of, or being aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a skin condition (claimed as blisters on the neck), including as due to an undiagnosed illness The Veteran contends that he has a skin condition, specifically, blisters on his neck, as a result of his service. But the Board finds that there is no current diagnosis of a skin condition upon which to predicate a claim for service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there necessarily can be no valid claim because, for all intents and purposes, there is no current disability to relate or attribute to the Veteran's service). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). Here, however, the post-service treatment records only show a history of blisters on the Veteran's neck from when he was in service, not any current skin conditions including blisters on his neck. See December 2012, November 2019 VA records. VA examinations in December 2012 and November 2019 also only affirmed the history of blisters on his neck while in service, not additionally more recently. To qualify for entitlement to compensation, a veteran must prove the existence of a disability and one that has resulted from a disease or an injury that occurred during active military service. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Symptoms alone, at least generally speaking, are not a ratable disability for which service connection may be granted. See id. That said, a more recent Federal Circuit Court case held that a diagnosis is not required to meet the current disability requirement and that pain, alone, can constitute a ratable disability if it causes impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). This holding does away with the notion, including cited in Sanchez-Benitez, that "pain alone is not disability" in all circumstances, but this concept is still valid in that a Veteran still needs to show disability due to disease or injury in service to get service connection. Despite his assertions that he presently has a skin condition, including blisters on his neck, the Veteran has not offered any competent and credible evidence supporting his assertions. Moreover, although blisters are visible even to the naked eye, none have been confirmed on visual examination of his neck at any time since the filing of this claim or contemporaneous to that. Thus, he has not established he has this claimed disability or has at any time relevant to this appeal (again, meaning not just during his service). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board therefore finds that service connection for a skin condition, inclusive of blisters on the neck, is not warranted as there is no current diagnosis of a disability or required showing of impairment in earning capacity if equating the symptoms the Veteran claims to experience to the "pain" scenario discussed in Saunders. 2. Entitlement to service connection for a cervical spine disorder, including as due to an undiagnosed illness The Veteran contends that he has a cervical spine disorder as a result of his service, including especially owing to his service during the Persian Gulf War. Ultimately, however, the Board finds that such a connection is not found, so his claim must be denied. The Veteran underwent a VA examination in December 2012. He alleged that the blisters on his neck in service had led to degenerative arthritis of his cervical spine. He reported that, while in Kuwait, he was once in full chemical gear when he felt a burning sensation on his neck. He said he developed blisters that "went away in a couple of weeks". He added that he since has had two surgeries on his neck due to arthritis initially in August 2006 and more recently in October 2008. He wanted to know whether there was a correlation between the two, meaning the events in service and those two eventual operations. But the examiner opined that the Veteran's neck (cervical spine) condition was less likely than not caused by his service. The examiner explained that there is no evidence that the claimed blisters on the Veteran's neck could lead to degenerative changes in his cervical spine. There is no equally or certainly no more probative (competent and credible) medical nexus opinion refuting that VA examiner's unfavorable conclusion of no correlation between the Veteran's service and his later diagnosed and operated on cervical spine disability. The Board has considered his lay statements and pleadings regarding the origin or cause of his cervical spine disability. But, while he is certainly competent to report on his symptoms, he does not have the competence to ascribe his symptoms to a particular diagnosis and provide a probative opinion regarding their etiology, especially in terms of whether related or attributable to his service. This determination is outside the realm of his lay competence since the condition at issue is medically complex, not instead merely simple. 38 C.F.R. § 3.159(a)(1) and (a)(2). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). For these reasons and bases, the preponderance of the evidence is against this claim of entitlement to service connection for a cervical spine disorder, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.