Citation Nr: 22019780 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 18-36 753 DATE: April 3, 2022 ORDER Entitlement to service connection for an enlarged prostate is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a heart condition is denied. Entitlement to service connection for swelling of the feet is denied. REMANDED Entitlement to service connection for skin hypopigmentation is remanded. Entitlement to service connection for a lumbar spine condition, to include arthritis and strain, is remanded. Entitlement to service connection for joint swelling is remanded. FINDINGS OF FACT 1. The evidence persuasively is against a finding that the Veteran's enlarged prostate began in service or is causally or etiologically related to an in-service event, injury, or disease. 2. The Veteran's hypertension manifested more than one year after separation and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 3. The Veteran's heart condition manifested more than one year after separation and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 4. The evidence persuasively is against a finding that the Veteran's foot swelling began in service or is causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an enlarged prostate are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for a heart condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for service connection for foot swelling are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to June 1977. He appeals a February 2016 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in September 2021. A transcript is of record. A veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (2013). Hypertension and cardiovascular conditions are such diseases. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Here, there is no evidence of record that the Veteran's hypertension or heart condition manifested during service or within one year of his separation from service. As such, 38 C.F.R. § 3.309(a) does not apply in this Veteran's case. See Walker, 708 F.3d at 1339. The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). May 2015 Lake Jackson Urology records reflect the Veteran has a benign hypertrophic prostate. October 2013 D.T.B. records reflect the Veteran has hypertension and May 2017 VA treatment records note coronary artery disease with "one stent put in eleven years ago." At the September 2021 Board hearing, the Veteran testified to receiving triple bypass surgery in March 2021. See September 2021 Board Hr. Tr. at 9. The Veteran also testified that his feet swell, which is a symptom capable of lay observation. Id. at 13. Thus, the evidence reflects the first element for service connection is met. However, the record reflects no in-service event or injury related to his current conditions. The Veteran testified that he wrote down every current physical ailment on his claim form without considering whether they were related to service. See September 2021 Board Hr. Tr. at 2-3. For example, the Veteran testified that he "really thinks that [the prostate] is just part of my body that actually went bad and not because of the military. The only thing that I think that actually had to do with military was when I had an accident back in 1973," which caused back problems. Id. at 3. The Veteran makes no contention that his current enlarged prostate is related to his service. Id. Similarly, the Veteran testified that he had no high blood pressure in service, his hypertension began "maybe 15 years ago," and currently he has no belief that his hypertension is related to service. Id. at 8. For his heart condition, the Veteran testified it began in his "late 40s, early 50s," well after service, and "just came over the years of [him] getting old and not eating the right foods." Id. at 9. Finally, the Veteran noted his foot swelling "started in my later part of my life" and he did not recall any problems or injury to his feet in service, noting the swelling may be related to his prior occupation, which required "a lot of walking and climbing ladders." Id. at 13-14. Service treatment records (STRs) note no diagnosis of hypertension or elevated blood pressure, a heart condition, prostate condition, or foot condition, to include swelling. The Veteran's May 1977 separation examination noted no abnormal medical findings, including the results from a rectal examination. Thus, the medical and lay evidence of record does not support a finding of an in-service event or injury for the Veteran's claims for service connection for an enlarged prostate, hypertension, heart condition, or foot swelling. Thus, the second and third element for service connection are not met and the claims are denied. REASONS FOR REMAND Skin Hypopigmentation A veteran is entitled to a VA examination if there is (1) competent evidence of a current disability, and (2) evidence that an injury occurred in service, and (3) an indication that the disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran testified that his current hypopigmentation is related to his time in service as he suffered from itchiness. See September 2021 Board Hr. Tr. at 4-5. The Veteran testified he ignored the itching until he noted hypopigmentation in his early thirties. Id. at 6-7. May 2017 VA treatment records reflect the Veteran has "patchy scattered hypopigmented lesions." The Veteran is competent to report the occurrence of in-service symptoms, such as itching, along with the history of his hypopigmentation; however, he is not competent to opine on the etiology or diagnosis of his skin condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As the Veteran has not been afforded a VA examination and there is insufficient evidence to make a decision on the claim, a remand is required. See McLendon, 20 Vet. App. 79. Lumbar Spine Condition The Veteran has lumbar spine arthritis, strain, and spondylosis. See May 2019 VA examination report. He contends his back condition began after a 1973 injury at Fort Hood, Texas in which he went airborne while traveling in a vehicle that drove over a hole, and he fell "right on the tailgate of [the] vehicle." See September 2021 Board Hr. Tr. at 3. The Veteran contends low back pain has bothered him ever since. Id. at 3. April 1975 STRs reflect the Veteran sought treatment for low back pain, noting he had pain for two years. At the Veteran's May 1977 separation examination, he recounted the injury from landing "on top of a MC61 tailgate" and noted he continued to suffer from "recurrent back pain," "especially when I do a lot of sitting down or driving." These STRs reflect four years of recurrent low back pain during the Veteran's service. In May 2019, a VA examiner opined that the Veteran's lumbosacral strain and spondylosis were less likely than not incurred in or caused by the complaints of low back pain during service. As rationale, the examiner noted the Veteran reported back pain on two occasions during his service from 1974 to 1978; however, the Veteran's active-duty service was from June 1972 to June 1977. See May 2019 VA medical opinion. She also noted "there is no evidence of additional back complaints per Veteran until five years ago...." Id. Since this examination, the Veteran competently testified that he has had chronic low back pain since his in-service injury, but his injury occurred at "twenty-three years old" so he did not "pay much attention to it" at the time. See September 2021 Board Hr. Tr. at 3. As this testimony of continued back pain since service was not considered by the May 2019 VA examiner in formulating her opinion, a remand is required to consider this favorable evidence. Joint Swelling The Veteran contends his symptom of joint swelling may be related to his back injury and condition, noted above. See September 2021 Board Hr. Tr. at 11-13. As the issue is inextricably intertwined with his claim for service connection for back condition, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. After the development of #1 above is complete, schedule the Veteran for an examination by an appropriately qualified clinician to determine the nature and etiology of his skin condition, to include hypopigmentation. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following: Is it at least as likely as not that the Veteran's current skin condition was incurred in or is otherwise related to his time on active duty, to include in-service itching? The examiner is directed to the Veteran's testimony from the September 2021 Board Hearing on pages 4-7 noting he had in-service itching, and hypopigmentation began in his early thirties. The examiner is also directed to May 2015 Lake Jackson Urology records noting a history of skin pigmentation and May 2017 VA treatment records noting "patchy scattered hypopigmented lesions." The examiner should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles should be considered. 3. After the development in #1 above is complete, obtain an opinion from a qualified reviewing clinician to determine the nature and etiology of the Veteran's lumbar spine condition, to include lumbosacral strain, spondylosis, and arthritis. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After a thorough review of the record to include all in-service and post-service treatment records, the reviewing clinician should answer the following: Is it at least as likely as not that the Veteran's lumbar spine condition was incurred in or is otherwise related to his time in service, to include the in-service injury where his low back landed on top of an MS61 tailgate? The reviewing clinician is directed to the Veteran's September 2021 Board hearing testimony on pages 3 and 10 noting he has suffered back problems since his in-service injury where he landed on the tailgate of a vehicle. The reviewing clinician is further directed to April 1975 STRs noting treatment for low back pain for two years and May 1977 report of medical history for separation noting "recurrent back pain" since landing "on top of a MS61 tailgate and hit my backbone," in total, reflecting four years of back pain during service. The reviewing clinician should also note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.