MALIGNANT SKIN NEOPLASMS (OTHER THAN MALIGNANT MELANOMA)

RAY BARTO SLABBEKORN, JR. · 2025 · Case ID: A25093699

MIXED

Summary

The Veteran, an Air Force Veteran who served from November 1982 to January 2003, appealed the denial of service connection for skin cancer, right shoulder disability, and bilateral hearing loss, and the remand of claims for left lateral epicondylitis and bilateral foot plantar fasciitis. The Board granted service connection for skin cancer on the back, ears, forehead, and cheeks. The Veteran claimed this resulted from extensive sun exposure while flying jets, citing studies showing higher cancer rates in aviators. While a C&P examiner opined the cancer was less likely than not related to toxic risk activities, the Board found the Veteran's statement about sun exposure through jet canopies to be competent and credible, especially in light of recent Air Force and DOD studies indicating increased cancer rates in Veteran aviators. The Board found the evidence in approximate balance and applied the benefit of the doubt to grant service connection for skin cancer. Service connection for bilateral hearing loss was denied because the Veteran's audiological examination did not meet the VA criteria for disability, despite his claims of noise exposure. The Board found the objective test results more probative than the Veteran's lay reports. The right shoulder disability claim was denied, as the Board found the evidence weighed against a service connection, and the C&P examiner's opinion was considered more probative than the Veteran's claims of G-force injury or secondary connection to his back conditions. The claims for left elbow disability and bilateral foot plantar fasciitis were remanded due to the RO's failure to provide C&P examinations for these conditions, despite evidence suggesting a current disability and potential service connection.

Rationale

Favorable finding from RO binds Board for current disability; Veteran's statement regarding sun exposure through jet canopies found competent and credible; Air Force/DOD studies showing higher cancer rates in aviators considered; Evidence in approximate balance, benefit of doubt applied

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

240327-428627

Full Decision Text

Citation Nr: A25093699
Decision Date: 10/29/25 Archive Date: 10/29/25

DOCKET NO. 240327-428627
DATE: October 29, 2025

ORDER

Entitlement to service connection for skin cancer on the back, ears, forehead, cheeks (skin cancer disability) is granted.

Entitlement to service connection for right shoulder disability is denied.

Entitlement to service connection for bilateral hearing loss disability (hearing loss disability) is denied.

REMANDED

Entitlement to service connection for left lateral epicondylitis and ulnar neuropathy (left elbow disability) is remanded.

Entitlement to service connection for left and right foot plantar fasciitis (feet disability) is remanded.

FINDINGS OF FACT

1. The Veteran's skin cancer disability was incurred in or aggravated by his military service.

2. The Veteran's right shoulder disability was not incurred in or aggravated by his military service, and was not caused or aggravated by a service connected disability.

3. The Veteran does not have a hearing loss disability for VA compensation purposes.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for skin cancer disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from November 1982 to January 2003.

In January 2023 the Veteran filed a VA Form 21-526EZ, Fully Developed Claim (Compensation) in which he claimed service connection for right shoulder, hearing loss, left elbow, skin cancer, and feet disabilities. In a March 2023 rating decision, the Department of Veterans Affairs (VA), Regional Office (RO) denied service connection for hearing loss, left elbow, skin cancer, and feet disabilities. In a June 2023 rating decision, the RO denied service connection for right shoulder disability.

In March 2024 the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) electing the Evidence Submission docket.

As an appeal in which the Veteran requested, on the Notice of Disagreement, an opportunity to submit additional evidence without a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the decision on the issue on appeal and evidence submitted by the appellant or his representative with the Notice of Disagreement or within 90 days following receipt of the Notice of Disagreement. 38 C.F.R. § 20.303.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection is established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Service connection is granted secondarily when there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability
or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Service connection is established for certain chronic disabilities if manifest to a compensable degree within one year. 3 8 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309.

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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.

Service connection is granted for a Persian Gulf veteran with a qualifying chronic disability that became manifest to any degree at any time. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i).

A Persian Gulf veteran is defined as a veteran who served on active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. Id. § 3.317(e)(2). The period of the Persian Gulf War is from August 2, 1990, through the present. See 38 C.F.R. § 3.2(i). Additionally, for veterans diagnosed with an infectious disease as defined in 38 C.F.R. § 3.317(c)(2), the qualifying period of service also includes active military, naval, air, or space service in Afghanistan on or after September 19, 2001. 38 C.F.R. § 3.317(c)(3)(ii).

The Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act, was enacted on August 10, 2022. Section 405 of the PACT Act reduces the threshold for establishing eligibility when considering presumptive service connection for Persian Gulf War veterans. Presumptive conditions under 38 C.F.R. § 3.317(a) and (b) may now manifest to any degree at any time. There is no longer a requirement for a chronic disability to manifest to a degree of 10 percent or more prior to December 31, 2026. The end date is no longer applicable and will be removed in a forthcoming regulation.

Additionally, the PACT Act expanded the definition of a Persian Gulf veteran to include those who served in the countries of Afghanistan, Israel, Egypt, Turkey, Syria, and Jordan, along with those who served in the Southwest Asia theater of operations as defined in 38 C.F.R. § 3.317(e).

Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v
longer a requirement for a chronic disability to manifest to a degree of 10 percent or more prior to December 31, 2026. The end date is no longer applicable and will be removed in a forthcoming regulation.

In rendering this decision, the Board reviewed all evidence of record whether or not discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). To the extent the evidence is found in "approximate balance," the Board afforded the benefit of the doubt in favor of the Veteran. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021) (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal").

1. Entitlement to service connection for skin cancer disability is granted.

The Veteran claimed his extensive exposure to sunlight while flying military jets resulted in his skin cancer disability.

Facts

In March 2023 the Veteran received an in-person C&P examination for skin diseases. In the examiner's opinion, the Veteran's cancer disability was less likely than not caused by his exposure to toxic risk activities. VA confirmed that the Veteran had been exposed to toxic risk activities in a December 2022 memorandum and qualified as a covered Veteran pursuant to 38 U.S.C. § 1119. VA also confirmed that the Veteran served in a 38 C.F.R. § 3.317(e)(2) and/or Sec. 1117 location in a January 2023 memorandum. The examiner observed that the Veteran claimed his cancer disability resulted from exposure to O-Xylene during service in Kuwait. The examiner reasoned that both the International Agency for Research on Cancer (IARC) and EPA had found that there was insufficient information to determine whether or not xylene was carcinogenic and considered xylene not classifiable as to its human carcinogenicity.

In July 2024 the Board received the Veteran's statement in support of his claim. He stated that he believed that his skin cancer disability resulted from his flying in canopy style fighter jets while on active duty. He stated that he had a long history of skin cancer during and after active service. The Veteran referred to medical treatment notes from spring of 2023, February 2024 and March 2024. In support of his claim, the Veteran pointed to the ACES Act of 2025, Pub. L. No. 119-32, 139 Stat. 480 (2025). He highlighted that Congressman August Pfluger stated, "[r]ecent large-scale studies by the Air Force in 2021 and Department of Defense in 2023 confirm that Veteran aviators get diagnosed with cancer and die from it at rates significantly higher than the U.S. general population. The causes of those cancers are not known to science. The purpose of the ACES Act is to fund research to "study the causes of cancers among Veteran flyers."

The Veteran stated that, "[w]ith this new information about veteran flyers having an increased rate[] of diagnosed cancer and skin cancer issues - I feel the Appeals Board must reevaluate the disability denial and assess this ongoing, lifetime condition."

Analysis

The Board reviewed the rating decision and found the RO made a finding favorable to the Veteran. The RO found the Veteran has a current disability. As this favorable finding binds the Board, it finds the first element of service connection is satisfied. 38 C.F.R. § 3.104 (c).

In considering service connection based upon the Veteran's exposure to toxic risk activities, the Board finds the C&P examiner provided a clear and well-reasoned medical opinion with supporting data and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board places
a finding favorable to the Veteran. The RO found the Veteran has a current disability. As this favorable finding binds the Board, it finds the first element of service connection is satisfied. 38 C.F.R. § 3.104 (c).

In considering service connection based upon the Veteran's exposure to toxic risk activities, the Board finds the C&P examiner provided a clear and well-reasoned medical opinion with supporting data and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board places great probative value on this negative nexus opinion. As such, the Board finds the evidence weighs persuasively against finding service connection based upon the Veteran's exposure to toxic risk activities.

This finding does not preclude the Board considering service connection on a direct basis. As noted above, the RO made a favorable finding which satisfies the first element of service connection. The Board next considered the second element of service connection, an in-service incurrence. The Veteran stated that he was exposed to direct sunlight through the canopy of his aircraft. He further stated that he flew approximately 3,500 hours during his military career. The Board finds the Veteran's statement competent and credible evidence of an in-service incurrence. A layperson is competent to provide "evidence not requiring that the proponent have specialized education, training, or experience." 38 C.F.R. § 3.159(a)(2). "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." See 38 C.F.R. § 3.159(a)(1). Moreover, the Board finds no evidence in the record to contradict the Veteran's assertions of his in-service sun exposure. As such, the Board finds that the second element of direct service connection is satisfied.

Having found the first and second elements of service connection satisfied, the Board considered whether there was sufficient evidence of a connection between the two. The C&P examiner did not opine as to the possibility of a nexus between the Veteran's current disability and his in-service sun exposure. However, the Board finds that the Veteran presented competent and credible evidence of a causal relationship between his skin cancer disability and his in-service sun exposure. In particular, the studies conducted by the United States Air Force in 2021 and the Department of Defense in 2023 confirmed that Veteran aviators were diagnosed with cancer at rates significantly higher than the U.S. general population.

Based upon its careful consideration of the record, the Board finds the positive and negative evidence of a causal relationship between the Veteran's skin cancer disability and his in-service sun exposure to be at least in approximate balance. Resolving all reasonable doubt in the Veteran's favor, the Board finds the third element of service connection is satisfied, and thus, service connection for skin cancer disability warranted. 38 U.S.C. § 5107(b); Lynch, supra.

Accordingly, service connection for skin cancer disability is granted.

2. Entitlement to service connection for hearing loss disability is denied.

The Veteran claimed his hearing loss disability resulted from his 20 years of exposure to an extremely high noise environment during military service.

Legal Criteria

For VA compensation purposes, a hearing loss disability exists where auditory thresholds equal or exceed 40 decibels at any of the frequencies of 500, 1000, 2000, 3000, or 4000 hertz; or equal or exceed 26 decibels at any three of those frequencies; or where speech recognition by Maryland CNC testing is less than 94 percent. See 38 C.F.R. § 3.385.

Facts

In March 2023 the Veteran received a C&P examination during which the audiologist conducted a hearing examination. The audiologist reported the following results:

March 2023 HERTZ

500 1000 2000 3000 4000 Avg CNC

RIGHT 20 25 25 30 30 27.5 96

LEFT 20 20 30 25 25 25 96

The audiologist affirmed that the Puretone tests were valid for both ears and that the speech discrimination scores were appropriate for this Veteran. The audiologist found the Veteran's hearing clinically normal, for both ears. She diagnosed sensorineural hearing loss in both ears. However, the hearing loss did not meet the criteria to be considered a disability for VA purposes. The audiologist did not observe a permanent positive threshold shift in the Veteran's hearing
HERTZ

500 1000 2000 3000 4000 Avg CNC

RIGHT 20 25 25 30 30 27.5 96

LEFT 20 20 30 25 25 25 96

In July 2024 the Board received the Veteran's statement in support of his claim. He stated that service connection was supported by his assessment physical for increased disability for constant tinnitus. The condition existed that day, with occasional pain. He pointed out that he experienced extremely high noise during his active service for 20 years, especially from 1990 to 2001.

Analysis

The results of the Veteran's audiological examination revealed that he does not have a hearing disability for VA purposes in either ear. The Veteran's Puretone scores were not greater than 40 decibels at any frequency. They also did not establish at least 26 decibels of hearing loss in three frequencies tested between 500 hertz and 4000 hertz. Moreover, the Veteran did not have less than a 94 percent speech recognition score for either ear.

The Board acknowledges the Veteran's contention that he suffers hearing loss in both of his ears. However, the standard audiological testing is more probative of the question of a current disability than the Veteran's competent lay reports. While the Veteran, as a lay person, is competent to report the symptoms of hearing loss, he is not competent to say that he has hearing loss that meets the specific criteria in 38 C.F.R. § 3.385. In this regard, such a diagnosis requires the administration and interpretation of audiological test results. As such, this is a complex medical question, and the Veteran is not competent to offer a diagnosis of hearing loss disability for VA purposes. Jandreau v. Nicholson, 492 F.3d 1377, n. 4 (Fed. Cir. 2007).

Finally, the Board acknowledges that the Veteran was not afforded a Toxic Exposure Risk Activity opinion. VA conceded that the Veteran was exposed to toxic risk activities. However, as the Veteran does not have a current hearing loss disability, a Toxic Exposure Risk Activity opinion is not warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2).

Service connection presupposes a current disability. 38 C.F.R. §§ 3.102, 3.303; see also Brammer v. Derwinski, 3 Vet. App. 223 (1995). In this case, the competent and credible evidence in favor of finding a hearing disability, bilaterally, for VA purposes is not in at least approximate balance. In fact, such evidence weighs persuasively against the finding. In the absence of a hearing loss disability, service connection for hearing loss cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223 (1992).

In reaching its conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "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(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, as the evidence persuasively weighs against finding a current disability for VA purposes, service connection for bilateral hearing loss is not warranted. As the evidence is not in approximate balance, the benefit-of-the-doubt rule does not change the outcome on this issue, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§
apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, as the evidence persuasively weighs against finding a current disability for VA purposes, service connection for bilateral hearing loss is not warranted. As the evidence is not in approximate balance, the benefit-of-the-doubt rule does not change the outcome on this issue, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, supra.

3. Entitlement to service connection for right shoulder disability is denied.

The Veteran claimed service connection for his right shoulder disability. In particular, he believed that his right shoulder disability was proximately due to experiencing high G forces during his 3,500 flight hours.

Facts

A January 2023 letter prepared by a primary care provider stated x-rays of the Veteran's shoulders revealed severe degenerative changes at bilateral acromioclavicular joints with severe joint space narrowing and prominent inferior osteophytes. There were mild degenerative changes at the bilateral glenohumeral joints with mild nonuniform joint space narrowing and tiny inferior glenoid osteophytes. The soft tissues were unremarkable.

In an April 2023 compensation and pension benefits (C&P) medical opinion filed in April 2023, an examiner provided his opinion that the Veteran's right shoulder disability was less likely than not caused by his service connected cervical and lumbar spine degenerative arthritis and disk diseases.

In a May 2023 addendum opinion, a C&P examiner stated his opinion that the Veteran's right shoulder disability was less likely than not caused by his service connected cervical and lumbar spine degenerative arthritis and disk diseases. The examiner observed that during his March 2023 C&P examination, the Veteran stated his shoulder injury "began while Flying an S-16 under G-Forces" and not due to his back disabilities. He found no evidence in the e-file that demonstrated objectively that the Veteran's right shoulder disability began as a result of his back or neck problems. The examiner stated the medical literature was controversial regarding secondary causes of musculoskeletal biomechanical degenerative changes and was based on empirical evidence, not on randomly controlled double blind studies. He pointed out that the shoulder and lumbar vertebrae did not share joints, ligaments, or muscles in order to attribute the Veteran's shoulder condition to his lumbar spine disabilities. He also pointed out that the shoulder and cervical spine did not share joints, ligaments or muscles in order to attribute the Veteran's shoulder condition to his cervical spine disabilities. Thus, his lumbar and cervical spine degenerative arthritis and disk diseases could not have caused the Veteran's right shoulder disability. He stated that the Veteran's shoulder strain was due to his moderate degenerative joint disease of the acromioclavicular joint.

In July 2024 the Board received the Veteran's statement in support of his claim. In it, he cited a 2023 treatment record documenting his referral to a neck and shoulder orthopedic specialist, referral to a private orthopedic center in September 2023, diagnosis of bilateral shoulder arthritic bone degeneration, diagnosis of right elbow advanced ulnar neuropathy, and prognosis of right elbow surgery and shoulder replacement. The Veteran stated his pain was managed with ibuprofen and steroid injections. He felt his condition resulted from his 3,500 flight hours. The Veteran claimed entitlement to separate disability ratings for lateral epicondylitis and ulnar neuropathy.

Analysis

In considering the Veteran's appeal, the Board reviewed the rating decision and found the RO made findings favorable to the Veteran. The RO found the Veteran has a current disability and that his claimed primary disabilities are service connected. As these favorable findings bind the Board, it finds the first and second elements of secondary service connection are satisfied. 38 C.F.R. § 3.104(c).

The third element of secondary service connection is a causal connection or aggravation of the Veteran's current disability with or by his service connected disabilities.

The Board finds the C&P examiner provided a clear and well-reasoned medical opinion with supporting data and reasoned medical explanations connecting the two, as clarified in his May 2023 addendum opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
the Board, it finds the first and second elements of secondary service connection are satisfied. 38 C.F.R. § 3.104(c).

The third element of secondary service connection is a causal connection or aggravation of the Veteran's current disability with or by his service connected disabilities.

The Board finds the C&P examiner provided a clear and well-reasoned medical opinion with supporting data and reasoned medical explanations connecting the two, as clarified in his May 2023 addendum opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board assigns great probative value to his negative nexus opinion.

The Board observes the record contains a March 2023 C&P medical opinion regarding service connection for left shoulder disability. The opinion is relevant as it addressed service connection secondary to the Veteran's cervical and lumbar spine degenerative arthritis and disk disease disabilities. The examiner stated the opinion that the Veteran's left shoulder strain was less likely than not proximately due to his service connected disability. However, in his rational the examiner stated the Veteran's cervical spine, degenerative arthritis, and disk disease (not lumbar spine, degenerative arthritis, and disk disease) were risk factors for left shoulder strain. Based upon this rational, the Veteran's left shoulder strain was at least as likely as not proximately due to his service connected disability. However, the examiner then stated that the Veteran's left shoulder strain was less likely as not proximately due to his service connected disability. He reasoned that the Veteran's cervical spine, degenerative arthritis, and disk disease (not lumbar spine, degenerative arthritis, and disk disease) were not risk factors for left shoulder strain. The Board finds this medical opinion of little probative value as it is internally inconsistent and unclear. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (holding that the equivocal nature of an examiner's opinion "should have signaled to the Board that the medical opinion was speculative and of little probative value").

The Board acknowledges that the Veteran believes his right shoulder disability was proximately due to, or the result of, his service connected cervical and lumbar spine, degenerative arthritis and disc disease. The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, express an opinion on questions of diagnosis and etiology. However, the origin or cause of a right shoulder disability is not a simple question that can be determined based on mere personal observations by a lay person. The Veteran's statements are not competent to establish a medical causal relationship or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009).

The Board considered the medical records cited in the Veteran's statement, and finds this evidence of little probative value.

Based upon a careful consideration of the record, the Board finds the positive and negative evidence of a direct service connection, and a secondary service connection, for the Veteran's right shoulder disability is not in at least approximate balance.

The Board observes the Veteran has a current diagnosis of degenerative disc disease of the right shoulder as evidenced by the medical records. Arthritis, a form of degenerative joint disease, is an enumerated condition under 38 C.F.R. 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran's degenerative disc disease was diagnosed in January 2023. The Veteran was discharged from military service in January 2003. The greater weight of the evidence is against finding the Veteran's disease was chronic in service or manifested to a compensable degree within the presumptive period, with a continuity of symptoms.

In reaching its conclusions, the Board has considered and applied the benefit-of-the-doubt rule. "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(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively weighs against finding the Veteran's right shoulder disability resulted from military service, his lumbar and cervical spine disabilities, or manifested as a chronic disease with a continuity of symptoms. As such, service connection for right shoulder disability, to include secondary service connection, chronic disease, and continuity of symptoms is not warranted. As the evidence is not in approximate balance, the benefit-of-the-doubt rule does not change the outcome on this issue, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, supra.

REASONS FOR REMAND

1. Entitlement to service connection for feet disability is remanded.

2. Entitlement to service connection for left elbow disability is remanded.

The Veteran claims service connection for feet disability, and secondary service connection for left elbow disability. The Board observes that the RO did not provide the Veteran with a C&P examination for either claim.

VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability, or signs and symptoms of a current disability, indicates that the disability or signs and symptoms of disability may be associated with active service, and does not contain sufficient competent medical evidence to decide 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. McLendon v. Nicholson, 20 Vet. App. at 83.

In July 2024 the Veteran provided a statement that he was diagnosed with mild arthritis of the first metatarsophalangeal joint and spurring along the latter aspect. He stated that he was also diagnosed with small plantar and retrocalcaneal enthesopathic spurs of the left foot. The Veteran stated that he had surgery on both feet in 2003. A December 1987 in-service radiologic report documented early calcaneal spur of the left foot. In addition, the Veteran stated that his condition resulted from wearing non-orthotic military boots for 20 years.

The Veteran also stated that his left elbow disability resulted from his right shoulder disability. Of note, the Veteran received a C&P examination for right elbow disability. However, the examiner did not address the Veteran's left elbow disability.

A December 2022 treatment record documented the Veteran received a diagnosis of moderate demyelinating bilateral ulnar neuropathy of the left elbow. In addition, while the Veteran is not service connected for a right shoulder disability, he is service connected for a left shoulder disability.

The Board observes that the record does not contain service treatment records referenced in the Veteran's statement. The Veteran cited a 14 June TeleMed treatment record and a 17 July right foot x-ray with prognosis. In addition, the record does not contain medical records of the Veteran's 2003 bilateral foot surgery. The Board notes the Veteran stated in his claims form that the surgery on his feet occurred in 2011.

The Board finds the record contains sufficient evidence to meet the McLendon evidentiary standards. Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. at 83. Further, there is insufficient competent medical evidence on file
, the record does not contain medical records of the Veteran's 2003 bilateral foot surgery. The Board notes the Veteran stated in his claims form that the surgery on his feet occurred in 2011.

The Board finds the record contains sufficient evidence to meet the McLendon evidentiary standards. Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. at 83. Further, there is insufficient competent medical evidence on file to decide the claims. As such, the RO's failure to afford the Veteran a C&P examination and obtain a medical opinion for his feet disability and left elbow disability claims was a pre-decisional duty to assist error that the RO must correct following a remand. 38 C.F.R. 20.802.

Finally, in readjudicating the Veteran's claim, the RO should address his claim for entitlement to separate disability ratings for lateral epicondylitis and ulnar neuropathy.

The matters are REMANDED for the following action:

1. For the purpose of correcting the above noted deficiency (i.e. to provide an adequate compensation and pension examination with corresponding medical opinions), make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. Document all requests for information, as well as all responses, in the claims file. If the records are unavailable because they have been irretrievably lost or destroyed, it should be so noted in the record (with the scope of the search described). The Veteran should be so notified and asked to submit copies of all additional treatment records he may have in his possession.

2. Schedule the Veteran for a C&P examination with an appropriate clinician to determine the nature and etiology of the Veteran's feet disability. The record must be made available to the clinician for review, including a copy of this Remand, and the clinician should indicate that the record was reviewed in connection with the examination. The clinician is asked to provide the following opinion:

Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's feet disability was related to or caused by his military service.

3. Schedule the Veteran for a C&P examination with an appropriate clinician to determine the nature and etiology of the Veteran's left elbow disability. The record must be made available to the clinician for review, including a copy of this Remand, and the clinician should indicate that the record was reviewed in connection with the examination. The clinician is asked to provide the following opinions:

(a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left elbow disability was related to or caused by a service connected disability.

(b.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left elbow disability was aggravated by a service connected disability.

The clinician is reminded that both secondary causation and secondary aggravation must be addressed, and that each of those opinions must be separately analyzed and addressed with separate and distinct rationales.

In formulating any opinion, the clinician(s) should consider and address all contentions of the Veteran regarding his feet and left elbow disabilities.

A complete rationale must be provided for all opinions, citing the supporting factual data and medical literature, as appropriate.

In readjudicating the Veteran's claim, the RO should address the Veteran's entitlement to separate disability ratings for lateral epicondylitis and ulnar neuropathy.

If the clinician(s) cannot provide an opinion without resorting to speculation, the clinician(s) must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the medical professional (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made.

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Austin, L

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.

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