Citation Nr: 21027408 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 12-22 763 DATE: May 5, 2021 ORDER Entitlement to service connection for anaphylaxis related to allergy shots and latex exposure is granted. Entitlement to service connection for a skin disorder characterized as sensitivity secondary to allergy shots, sun light and herpes simplex keratitis treatment is denied. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a kidney disorder is denied. FINDINGS OF FACT 1. The Veteran has a condition characterized as anaphylaxis related to allergy shots and latex exposure medically attributed to wartime service. 2. The Veteran does not have a skin disorder characterized as sensitivity secondary to allergy shots, sun light and herpes simplex keratitis treatment that is not already service connected, nor has he had such disability any time incident to the claim. 3. The Veteran did not sustain any additional kidney disability nor was a kidney condition worsened because of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault on the part of VA, or because of an event that was not reasonably foreseeable. CONCLUSIONS OF LAW 1. Anaphylaxis related to allergy shots and latex exposure was incurred in wartime service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a skin disorder characterized as sensitivity secondary to allergy shots, sun light and herpes simplex keratitis treatment that is not already service connected are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a kidney disorder are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to May 1974 and had active duty for training (ACDUTRA) and inactive duty for training periods (INACDUTRA) from November 1983 to November 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). In September 2015, the Board denied multiple of the Veteran's claims to include compensation under the provisions of §1151 for a kidney disorder, and service connection for anaphylaxis and skin disorder characterized as note above. The Veteran appealed the Board's denial of these and other issues to the United States Court of Appeals for Veterans Claims (Court). In November 2017, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMPR). An Order of the Court dated November 2017 granted the motion, vacated in part the Board's September 2015 decision, and remanded the case to the Board. In November 2018, the Board remanded the claims that were the subject of the JMPR to the AOJ for medical examination and opinions. While the case was in remand status, following development and readjudication at the AOJ, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA) for all but the three remaining issues addressed in this decision. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). In general, 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 disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases as will be presumed related to service if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means 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); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for anaphylaxis related to allergy shots and latex exposure is granted. The Board remanded this matter in pertinent part to obtain a VA medical opinion in compliance with the JMPR. In January 2020, a VA physician opined that any current anaphylaxis is at least as likely as not related to service to include the Veteran's active service from November 1969 to May 1974 and his periods of ACDUTRA and INACDUTRA from November 1983 to November 1998. The rationale was that the remand instructions indicate to consider the period from November 1983 to November 1998. During this time, Veteran was seen for allergic reactions which required an epinephrine shot. The records show continued symptoms since then. The Veteran's treating health care provider reported in November 2020 that the Veteran has anaphylaxis caused by Type I (IgE-Mediated Hypersensitivity) secondary to repeated exposure to latex in the oxygen delivery apparatus used in his service as a pilot. Further, a Type IV (Cell-Mediated Hypersensitivity) reaction occurs with skin exposure to latex. Again, caused by repeated exposure to latex from the breathing apparatus. This opinion was based on review of his service, record, treating him for 15 years, and review of medical literature. We note there are records of shot reactions in STRs dated in June and August 1973. There is also a discussion in a September 2009 treatment record of anaphylactic reactions to latex, with reference to his initial reactions in service being possibly the same reaction to latex. The VA opinion and the private treating source's opinion when viewed collectively are highly probative evidence in support of the claim. They are both competent sources, trained medical professionals who have reviewed the record and examiner the Veteran, and each are on their face credible. These opinions are not inconsistent with the treatment record inasmuch as it shows the evolution of the diagnosis over the years. We reasonably conclude that they both stand for the proposition that the currently diagnosed anaphylactic reactions to latex are related to the initial period of service. We reasonably conclude that the STRs for his period of active service from November 1969 to May 1974 show the allergy reactions that these examiners are referencing. We do note that there are some restrictions on granting service connection for diseases of allergic etiology. 38 C.F.R. § 3.380 provides as follows: Diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. Here, we note that a grant of service connection in cases such as these is not always prohibited, and we find that the facts in this case take it out of a regulation contemplating something akin to hay fever. The facts in this case place it outside the "general" rule contemplated by 3.380. Indeed, we are dealing with a condition, though variously characterized over the years, that has ultimately been medically classified as latex allergy and anaphylaxis reaction. Based on this record, we find that anaphylaxis related to allergy shots and latex exposure cannot reasonably be disassociated with his active service. The record does indicate that there are such reactions during his period of active service to include the June 1973 aeromedical summary. The record is at least in equipoise as to whether the current anaphylaxis is related to service in this manner. Specifically, it is related to the period of active service from November 1969 to May 1974. Accordingly, reasonable doubt is resolved in the Veteran's favor and service connection for anaphylaxis related to allergy shots and latex exposure is granted. 2. Entitlement to service connection for a skin disorder characterized as sensitivity secondary to allergy shots, sun light and herpes simplex keratitis treatment is denied. Pursuant to the JMPR, a VA medical examination with opinion was obtained with regard to this claim. The same VA physician in January 2020 found a skin condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner found no current skin disorder. They explained that review of records shows no current underlying skin disorder. It was explained that the Veteran develops uritacaria and hives during acute allergic reactions, however, this is not a separate condition and is a symptom of the initial allergic reaction. Here, we note parenthetically that the Veteran is also service-connected for allergic rhinitis in addition to the aforementioned anaphylaxis related to allergy shots and latex exposure. The Board concludes that the Veteran does not have current a skin disorder characterized as sensitivity secondary to allergy shots, sun light and herpes simplex keratitis treatment that has not already been service-connected, and has not had any such disorder at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The competent, credible evidence fails to show current disability. The weight of the competent evidence is against finding current disability due to disease or injury. We also find that no relevant enumerated chronic disease was manifest within one year of separation. Due to the absence of proof of a present disability due to disease or injury, there is no valid claim for service connection on any basis. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). It follows that there must be a recognized disease or injury. The November 2020 opinion of the Veteran's treating nurse practitioner does not demonstrate that there is a separate skin disorder not already service-connected. Here, we note that the condition characterized as anaphylaxis contemplates the skin reactions discussed in the opinion. The lay opinion of the Veteran is outweighed by the VA examiner's opinion that there is no skin condition not already considered. The Board acknowledges that he indeed may report his perception of symptoms. These were considered by the VA physician in rendering the findings of no current disability due to disease or injury. The weight of the probative evidence is against a finding of current disability due to disease or injury as to the claim. In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for a current disability due to disease or injury, preponderates against the claim. The most probative evidence, the 2020 VA examination, specifically establishing no disability, establishes that he does not have any skin disorder not already service-connected. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Compensation under 38 U.S.C. § 1151 The law provides that compensation may be paid for a qualifying additional disability that is 1) not the result of the Veteran's willful misconduct; 2) was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA either by a VA employee or in a VA facility; and 3) the proximate cause of the disability was A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. VA regulations provide that benefits under 38 U.S.C. § 1151 (a) for claims received by VA on or after October 1, 1997 for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361. If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. To establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability. 38 C.F.R. § 3.361 (c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran's representative. To establish the proximate cause of an additional disability or death, it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d). 3. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for a kidney disorder is denied. The Veteran contends that he has this (and other disorders no longer part of this legacy appeal) as a result of inadequate treatment by VA. The Board adjudicated these claim in 2015 based on the Veteran's theory that post-surgery complications resulting in, among other things, a kidney disorder, were due to "respiratory distress related to anaphylaxis due to a latex allergy" following an August 2004 open Nissen fundoplication surgery. In light of the evidence documented by the JMPR indicating that the Veteran was allergic to latex and the operation room for his August 2004 surgery was set up for latex free conditions, the Board in 2018 found the May 2012 VA opinion relied upon was inadequate to evaluate his claim of entitlement to compensation under the provisions of §1151 for kidney, among other, disorders. The Board ordered a medical opinion to address whether there was qualifying additional disability due to: (a) carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA prior to and in furnishing hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. The examiner was to address the Veteran's contention that he has kidney disorder caused by respiratory distress related to anaphylaxis due to a latex allergy and improper exposure to latex during the course of the Veteran's August 2004 open Nissen fundoplication. The examiner was to consider a September 2004 VA operative note that the Veteran was allergic to latex and that the operation room was set up for latex free conditions. Also, a March 2004 general surgery clinic record noted the Veteran having a history of anaphylaxis. Additionally, a June 2004 VA medical record noted that the Veteran had anaphylaxis of an unknown cause. Further, a September 2004 VA surgery in-patient note showed that the Veteran received prophylaxis for anaphylactic reactions. The Veteran underwent VA examination in February 2020 by a VA physician. Diagnoses included acute renal failure in 2004 and nephrolithiasis (kidney stones) in 2012. He reported the renal failure condition began in 2004 and he was referred for surgical repair of hiatal hernia in August 2004 at the Salt Lake City VA Medical Center. The reported history also noted that surgery was complicated by an anaphylactic reaction to latex in the surgeon's gloves. He had a subsequent exploratory surgery a few days later and developed wound infection or dehiscence. He was in a coma for over two months. During the hospitalization, a contrast imaging study was performed, and this triggered kidney failure. He also developed severe inflammation of the urinary bladder due to use of a latex containing catheter. Following the hospitalization, he had problems with bladder spasms and passage of blood clots and sludge. He has had symptoms of enlarged prostate and lower urinary tract symptoms. He subsequently developed kidney stones. Stones were identified during imaging studies at Alta View Hospital around 2005. He has had at least two other kidney stones which passed at home, the most recent approximately six years ago. Current symptoms include urinary urgency, frequency, and incomplete emptying of the bladder. He also has occasional urinary incontinence. Current medications include tamsulosin, terazosin, tadalafil, finasteride, and saw palmetto. The examiner and rendered the following negative opinion: It is less likely as not that the claimed disability of kidney disorder with residuals was caused by or became worse as a result of the VA Treatment at issue. Less likely as not the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel and less likely as not an additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or Failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. Reviewed medical records does not show a current disability associated with the claim of Kidney disorder. Records show Veteran developed acute renal failure post op in 2004. Veteran had a complicated post-operative course in 2004. He developed acute renal failure. Veteran was managed and treated appropriately, eventually acute renal failure resolved. There is no objective evidence carelessness, negligence, lack of skill or similar incidence from attending VA personal. Here, the examiner's opinion was based on a review of the VA treatment record and case file and included a case synopsis. After a review of all the lay and medical evidence, the Board finds the preponderance of the evidence is against a finding of entitlement to compensation 38 U.S.C. § 1151 for kidney disorder. The February 2020 VA medical opinion is supported by explanations based on the examiner's medical knowledge and review of the Veteran's record. The Veteran has not submitted any additional medical evidence or opinion from another medical professional indicating that VA was careless, negligent, lacked proper skill, erred in judgment or had other fault that ultimately resulted in the Veteran having an additional disability. The Board has no reason to doubt the competency or the veracity of the February 2020 VA medical opinion. The assessment is uncontroverted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt an independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). It is credible and it is accorded substantial probative weight. Here, there are no residuals of what happened with regard to the kidney in 2004. Furthermore, there was no objective evidence carelessness, negligence, lack of skill or similar incidence from attending VA personal. Though the Veteran is competent to provide lay testimony regarding the symptoms he observed, he does not have the expertise necessary to address the complex medical issue of whether he received inadequate medical care that resulted in kidney disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77; Barr, 21 Vet. App. at 307. We also note that there are no Jandreau type exceptions in this case. He is competent to report that he had a kidney issues after the surgery. However, there is no proof that there are current and remote kidney manifestations related to the surgery or the post-operative manifestations. The Veteran's own opinion is not competent. Thus, compensation pursuant to 38 U.S.C. § 1151 is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL, 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.