Citation Nr: 22051243 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 16-24 883 DATE: September 8, 2022 ORDER Service connection for a low back disorder is denied. Service connection for a bilateral eye disorder is granted. Service connection for a skin disorder is granted. REMANDED Service connection for a gastrointestinal (GI) disorder. FINDINGS OF FACT 1. The Veteran served on active duty from February 1995 to February 1998 and from May to November 2002. He had additional National Guard service; he has been 100 percent disabled based on unemployability since May 2012 and a 100 percent schedular since June 2016. 2. A low back disorder was not shown in service, not shown to a compensable degree within one year of service, and symptoms were not continuous since service; the current diagnoses of L4-5 disc bulge, bilateral neural foraminal stenosis and L5-S1 trace annular bulge, facet degeneration, and right neural foraminal stenosis are not causally or etiologically related to service. 3. A bilateral eye disorder was shown in service and has continued since. 4. A skin disorder was shown in service and has continued since. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2022). 2. A bilateral eye disorder was incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2022). 3. A skin disorder was incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2019 the Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In January 2020, the issues were remanded for additional development. They now return for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Low Back Disorder The Veteran claims that service connection is warranted for a low back disorder because he injured his low back in service jumping off a tank and has had back problems since. As to a current disorder, a May 2017 VA MRI reflected a diagnosis of L4-5 disc bulge, bilateral neural foraminal stenosis and L5-S1 trace annular bulge, facet degeneration, and right neural foraminal stenosis. Therefore, the first element of service connection has been met. As to an in-service incurrence, the service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis of any low back disorder. Thus, an in-service incurrence is not shown and the medical evidence does not support service connection on a direct basis. Moreover, there is no medical evidence indicating that the current low back disorder is causally or etiologically related to service. As to presumptive service connection, no chronic disease or injury was shown in service. Notably, the STRs do not reflect any chronic back disorder in service. In this regard, there is no evidence of back complaints or findings in service. Next, a review of the record fails to show complaints of, treatment for, or diagnosis of a low back disorder in service or within one year of separation from service. Rather, the first evidence of the current low back diagnoses is dated in May 2017, some 15 years after the Veteran separated from service in November 2002. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" or on a "manifest within one-year from separation" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the Veteran separated from service in 2002 and medical evidence does not reflect a diagnosis of a low back disorder until May 2017. Although VA treatment records first reflected back complaints in September 2015, the Veteran did not report ongoing symptoms at that time. The first time the Veteran mentioned ongoing symptoms was in a March 2017 VA treatment record when he reported ongoing back complaints for 20 years; however, at that time he did not report any inservice injury, but he reported that his back problems became worse after a bike injury just a year earlier. Importantly, nothing in the STRs corroborates a single complaint of back pain, and the record reflects that the Veteran worked as a welder, pipe fitter, and field worker after service. As such, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Therefore, even assuming back symptoms as early as 2015, the medical evidence does not support presumptive service connection on any basis. The Board recognizes that a VA examination was not provided in conjunction with the claim for service connection for a low back disorder. For service connection claims, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. However, the duty to provide an examination is not limitless. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). The McLendon threshold elements above must be satisfied before VA is obliged to provide an examination or opinion. Aside from the Veteran's lay assertions, the medical evidence does not suggest that a low back disorder may be associated with service. There is nothing in the STRs reflecting chronic back problems and his allegation of ongoing symptoms has been undermined by the medical evidence of record. As such, his contentions alone are not sufficient to trigger an examination. Thus, VA's duty to provide an examination is not met for the claimed disabilities. Bilateral Eye Disorder The Veteran claims that service connection is warranted for a bilateral eye disorder which he described as allergic, burning, swollen, red, sensitive, dry eyes. He indicated that he experienced these eye symptoms in service due to sunlight and desert sand exposure, and the symptoms continued since service. The record reflects that the Veteran was seen in service in July 2002 for swollen eyelids. He reported that he never had allergies before and began having these symptoms since arriving in Utah. The diagnosis was allergic conjunctivitis. The post service medical evidence includes VA treatment records which noted ongoing eye symptoms. A September 2015 VA treatment record stated that the Veteran had eye complaints, including sensitivity to light. A September 2017 VA treatment record noted that dirt from desert got into his eyes in service and now the symptoms have become worse. He reported that he currently had red, dry eyes, as well as burning and itching of the eyes. A July 2018 VA treatment record noted the Veteran's complaints of red, dry, burning eyes, with photosensitivity and pruritis. VA treatment records from 2019 through 2021 note continued treatment for dry eye. Based on the above, the medical evidence confirms eye complaints in service in July 2002, and the lay evidence shows ongoing complaints of eye symptoms since service. While there is no medical evidence of eye complaints prior to 2015, there are no earlier medical records and the Veteran's reports have been consistent; nothing in the record undermines a finding of credibility regarding his self-reported history and statements. There is no medical opinion on point. A November 2020 VA examination report reflected a diagnosis of allergic rhinitis unrelated to service, but no eye findings were made. Therefore, giving the Veteran the benefit of the doubt, the currently-diagnosed bilateral eye disability began during service (allergic conjunctivitis in service) and have continued ever since. Consequently, service connection is warranted for a bilateral eye disability, and the appeal is granted. Skin Disorder The Veteran claims that service connection is warranted for a skin disorder that he described as tinea cruris of the legs, ankles, and hands because it first manifested during service. He testified at the hearing that he was treated for dryness on his hands in service and he still has the same skin complaints. Turing to the medical evidence, a September 2015 VA examination report reflected a diagnosis of onychomycosis of the hands. There was no evidence of tinea. An October 2015 VA treatment record noted the Veteran's report of an itchy rash on his right foot. He was prescribed a cream. VA treatment records dated in January and July 2017 stated that the Veteran's hands would get extremely dry. A March 2020 VA treatment record indicated that he had dryness of the hands. He was noted to use creams. Therefore, the first element of service connection has been met. As to an in-service incurrence, the STRs reflect numerous skin complaints. STRs from July 1995, December 1995 and August 1996 reflected tinea cruris of the left hand and leg. A December 1997 Report of Medical History indicated that the hands would peel. The diagnosis was onychomycosis. The December 1995 STR specifically reflected that he had a recurrent rash for six months. The diagnosis was intermittent pruritic rash and scaling hands, pruritic. A January 1996 STR reflected eczema. Therefore, the second element of service connection, an in-service incurrence, is met. As to a medical nexus, there is no medical evidence weighing in favor of the claim; a September 2015 VA examination report noted that the Veteran's onychomycosis of the hands was less likely as not incurred in service. The examiner reasoned that the fungal infection in service resolved; however, the examiner did not address the Veteran's report of ongoing skin symptoms since service. Based on the above, the medical evidence confirms skin complaints in service, and the lay evidence shows ongoing complaints of skin symptoms since service. While there is no medical evidence of skin complaints prior to 2015, there are no earlier medical records and the Veteran's reports have been consistent; nothing in the record undermines a finding of credibility regarding his self-reported history and statements. While there is a medical opinion against the claim, the examiner did not address the Veteran's report of ongoing skin symptoms since service. Therefore, giving the Veteran the benefit of the doubt, the currently-diagnosed skin disability began during service (onychomycosis and tinea cruris and dry hands in service) and have continued ever since. Consequently, service connection is warranted for a skin disability, and the appeal is granted. REASONS FOR REMAND As to the remaining issue of a GI disorder, the Veteran underwent a VA examination in November 2020. Irritable bowel syndrome (IBS) was diagnosed but the examiner opined that GERD/IBS were less likely than not incurred in or caused by service. The examiner reasoned that the Veteran had stomach complaints in service and was diagnosed with gastroenteritis, not gastroesophageal reflux disease (GERD) or IBS. The examiner stated that chronicity of GERD/IBS could not be established because there was no record to establish continuous care. The remand directives specifically instructed the VA examiner to address the Veteran's report of ongoing symptoms since service; however, the VA examiner did not address the lay report of ongoing symptoms and instead relied on the absence of documentation of ongoing symptoms. Therefore, another medical opinion is needed. The matter is REMANDED for the following actions: 1. Obtain updated VA clinician records and associate them with the claims file. 2. Direct the claims file to a clinician to address the following: What is the medical probability (that is, the likelihood is at least approximately balanced or nearly equal, or higher) that the Veteran's IBS (diagnosed in 2020) and/or GERD (September 2015) is/are related to August 2002 complaints and/or diagnosis of gastroenteritis with constipation in service? Without determining the Veteran's credibility, the clinician should accept the Veteran's statements that he has had ongoing GI symptoms since service, including bloating and constipation. It would be helpful to the Board if the clinician could explain why the medical evidence is either consistent with or inconsistent with a finding that GERD and/or IBS was incurred in service, and the clinical differences between gastroenteritis, GERD, and IBS. If the clinician determines that a new examination is necessary one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.