Citation Nr: 21027882 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-11 245 DATE: May 7, 2021 ORDER Entitlement to service connection for a skin rash, including cellulitis, is denied. Entitlement to service connection for headaches, to include as secondary to the service-connected posttraumatic stress disorder (PTSD) and maxillary sinusitis with allergic rhinitis, is denied. FINDINGS OF FACT 1. The Veteran's skin rash, and cellulitis, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's headaches are not secondary to service-connected PTSD or maxillary sinusitis with allergic rhinitis, and are not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for skin rash, and cellulitis, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for headaches due to service or service-connected PTSD, or maxillary sinusitis with allergic rhinitis, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1982 to December 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This case was most recently before the Board in November 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, 581 F.3d 1313. 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. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for skin rash, and cellulitis. The Veteran seeks to establish service connection for a skin rash. He maintains that his skin rash is linked to his military service and has been present since his service. The Board concedes that the Veteran has a current diagnosis. In November 2020 the Board found that the Veteran was diagnosed with a skin rash in July 2014. The Board also noted that in May 2017 the Veteran had cellulitis. As such he has a current diagnosis. The Board concedes the Veteran had an in-service event, injury, or illness. September 1993 service treatment records demonstrate the Veteran had cellulitis on his left foot. In July 1999 he presented for treatment for a rash on his body. In March 2002 he presented for treatment for a rash on both of his arms. This evidence supports finding that the Veteran suffered an in-service event, injury, or illness. The question remaining for the Board, is whether there is a nexus, or link, between the Veteran's conceded current diagnosis of skin rash and his military service. The Board finds that a preponderance of the evidence is against such a finding. The Veteran was afforded a VA examination, in connection with his claim, in December 2016. The examiner opined that it was less likely than not that the Veteran's skin rash was incurred in or caused by the claimed in-service event, injury, or illness. To support this conclusion the examiner noted that there was no pathology to render a diagnosis. The Veteran was afforded a VA examination in September 2020, in connection with his claim. The examiner opined that it was less likely than not that the Veteran's skin rash was incurred in or caused by the claimed in-service injury, event, or illness. To support this conclusion the examiner noted the Veteran was treated for a rash in-service and was diagnosed with ring worm. It was noted he was seen in July 2014 for a rash on his back and was diagnosed with prickly heat rash. The examiner noted that heat rash occurs acutely and had resolved and per the Veteran's report he had not had a rash in over a year. The examiner noted that the skin examination at the time was normal without any objective evidence of a skin pathology. The Veteran was afforded a VA examination, in connection with his claim, in February 2021. The examiner opined that it was less likely than not that the Veteran's skin rash was incurred in or caused by the claimed in-service injury, event, or illness. To support this conclusion the examiner noted the 1993 treatment for cellulitis. The examiner noted that the cellulitis in 1993 was acute, self-limited, and resolved as evidenced, in part, by the no skin condition being identified at the separation examination. The examiner discussed the 1999 record of a rash all over the Veteran's body and noted he was specifically diagnosed with ringworm. The examiner discussed the March 2002 diagnosis of contact dermatitis and explained that it was likely to have resolved as there was no notation of such on the separation documentation. The examiner stated that the 2017 cellulitis was localized inflammation and would be unrelated to any of the in-service incidents discussed. The examiner noted the Veteran was diagnosed with heat rash and explained that there was no evidence that the 2014 or 2016 heat rash had an onset in service, or was due to event in service. The examiner discussed the etiology of a heat rash compared to tinea corporis/ringworm. The examiner noted that there was no chronic condition diagnosed at separation, and tinea would have been evident if it were a chronic condition. The examiner stated that despite the Veteran's lay statements the medical evidence did not support the claim. The Board notes that the September 2016 and September 2020 VA examiner opinions were previously found to be inadequate by the Board because they were based on a lack of a current diagnosis. As such those opinions are given little probative value. The VA February 2021 examiner opinion is based on an accurate medical history, a review of the record, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Because of this, the opinion is probative. The opinion does not suffer the from the flawed rationale that there is not a current diagnosis. The opinion accurately discusses the relevant service treatment records and post service treatment records and provides a detailed explanation of the etiology of relevant diseases. This opinion represents competent, and probative evidence from a medical professional that is against the Veteran's claim. The Veteran contends that his skin rash has been chronic since his service. As noted by the February 2021 VA examiner the Veteran's separation examination did not identify any skin disability. The clinical evaluation of his skin in October 2002 was normal. It was noted he had no significant lesion on his skin and the history of his claimed conditions did not include any skin disabilities. July 2014 Medical Treatment Records demonstrated that the Veteran had a skin rash that started five days prior. The history of the present illness noted that he had no similar symptoms previously and a possible cause had been identified as working outdoors. The lack of any prior similar symptoms conflicts with the Veteran's assertion that his symptoms were chronic since his service. The lack of skin symptoms on his separation examination and the note of no previous similar symptoms in 2014, conflicts the Veteran's assertion of chronic symptoms. The Veteran in this case is competent to report symptoms, however his reports are given less credible value based on the evidence discussed above. Further although the Veteran contends that his heat rash and cellulitis are related to his military service, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of multiple types of skin disorders and how they potentially develop. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the February 2021 VA examiner. In light of the foregoing, the Board must find that the weight of the evidence is against the Veteran's claim. In reaching that decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § §§ 4.3, 4.7. The appeal of this issue must be denied. 2. Entitlement to service connection for headaches, to include as secondary to the service-connected PTSD and maxillary sinusitis with allergic rhinitis. The Veteran seeks to establish service connection for headaches. He maintains that his headaches are linked to his military service, including his service connected disabilities. The Board concedes that the Veteran has a current diagnosis. The February 2021 VA examiner opined that the likely diagnosis was tension headaches, but noted the Veteran has self diagnosed migraines. As such the Veteran has a current diagnosis of headaches. The Board concedes that the Veteran suffered an in-service event, injury, or illness. May 1997 Service Treatment Records indicate the Veteran presented with body aches and a mild headache and was assessed with a viral syndrome. In February 2000 he presented with a complaint of headache, sinus congestion, and chest congestion. He was assessed with sinusitis. As such he suffered an in-service event, injury, or illness. The question remaining before the Board is whether the Veteran's current headaches are related to his military service, including the in-service headaches, or his service connected disabilities. A preponderance of the evidence is against such findings. The Veteran was afforded a VA examination, in connection with his claim, in September 2020. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. To support this conclusion the examiner stated that there was no chronic diagnosis for migraine. The Veteran was afforded a VA examination, in connection with his claim, in February 2021. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. To support this conclusion the examiner noted that the Veteran did not seek care for a headache condition, unrelated to sinusitis, while in service. The examiner noted that the October 2002 and July 2002 separation documents were negative for a headache condition, and the record did not otherwise demonstrate headache symptoms until 2016. The examiner opined that it was less likely than not that the Veteran's headaches were aggravated by PTSD or the Veteran's sinus condition. The Board notes that the September 2020 VA examiner opinion was previously found to be inadequate by the Board because it was based on a lack of a current diagnosis. As such this opinion is given little probative value. The VA February 2021 examiner opinion is based on an accurate medical history, a review of the record, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Because of this, the opinion is probative. The opinion does not suffer the from the flawed rationale that there is not a current diagnosis. The opinion accurately discusses the relevant service treatment records and post service treatment records and provides a detailed explanation of the etiology of possible headache disabilities. This opinion represents competent, and probative, evidence from a medical professional that is against the Veteran's claim. The Veteran contends that his headaches have been chronic since his service. He reported to the September 2020 examiner that his headaches began around 2000 and he did not seek medical attention for his headaches during service. As noted by the February 2021 VA examiner the Veteran's separation examination did not identify a headache disability. In the report of medical history in October 2002 the Veteran was asked if he had, or ever had, frequent or severe headaches, to which he replied in the negative. October 2015 Medical Treatment Records indicate the Veteran did not have a headache. The negative response related to headaches in October 2002 and October 2015 are not consistent with the Veteran's report of chronic headaches since 2000. The Veteran is competent to report headache symptoms, however his reports are given less credible value based on the evidence discussed above and the February 2021 VA examiner's rationale. Further although the Veteran contends that his headaches are related to his military service, he is not competent to provide a nexus opinion regarding this issue, because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the February 2021 VA examiner. As such a preponderance of the evidence is against finding that the Veteran's headaches are directly related to his military service. The Veteran is also not competent to provide a medical opinion that his headaches are related to his service connected disabilities including PTSD and maxillary sinusitis with allergic rhinitis. The February 2021 VA examiner noted that the Veteran has documented sinus-related headaches. The examiner noted that if the Veteran's headaches do represent a migraine headache they are new onset arising after at least 2016, and if they are due to residuals of his chronic sinus condition then they are assignable to that condition and do not represent a separate headache condition. The Veteran's April 2017 sinusitis/rhinitis examination notes that the Veteran had headaches attributed to sinusitis, which is supportive of the February 2021 examiner's opinion. Further, when the Veteran reported headaches during service he was assessed with a viral syndrome and sinusitis. The February 2000 record directly suggests the Veteran's in-service headache was related to sinusitis, and the May 1997 headache report suggests the Veteran's headache was associated with a virus rather than an independent headache disability. Thus, the examiner found there to be no evidence showing causation or aggravation by the Veteran's service-connected PTSD. As to the headaches being recognized as part of the service-connected sinus condition, the 30 percent rating for that condition contemplates headaches. Thus, the Veteran is already compensated for the headaches associated with this service-connected sinus disorder. In light of the foregoing, the Board must find that the weight of the evidence is against the Veteran's claim. In reaching that decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The appeal of this issue must be denied. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.