Citation Nr: 1337843 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-10 315 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a skin condition, unspecified. 2. Entitlement to service connection for an acquired psychiatric disorder and/or schizoid personality disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the instant matters were previously before it in February 2012, at which time they were remanded for further development. Upon completion of the requested development, the appellant's claims were readjudicated and denied via an October 2012 supplemental statement of the case. The case was returned to the Board that same month. The Board further notes that the United States Court of Appeals for Veteran Claims (Court) held in Clemons v. Shinseki that an initial claim for a particular mental condition submitted "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." 23 Vet. App. 1 (2009). A review of the record reveals the presence of several psychiatric diagnoses. As such, the Board has re-characterized the issue of entitlement to service connection as shown on the title page of this decision. FINDINGS OF FACT 1. The Veteran's diagnosed actinic keratosis and squamous cell carcinoma are not attributable to active military service; squamous cell carcinoma was not manifested within a year of separation from service. 2. At no time during the current appeal has the Veteran been found to have a schizoid personality disorder; personality disorders are a developmental defect, and not eligible for service connection. 3. The Veteran does not have a psychiatric disorder for which compensation is payable that is attributable to his active service. CONCLUSIONS OF LAW 1. The Veteran does not have a skin condition that is the result of disease or injury incurred in or aggravated by active military service; nor may it be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The Veteran does not have a psychiatric disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Upon receiving the Veteran's claims of service connection for a skin condition and a mental condition, the RO sent to him a letter dated in June 2006 wherein he was notified of the evidence required to substantiate that claim. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection, such as treatment records related to the claimed conditions and statements from persons who knew of any disabilities that he may have had in service witnessed how the claimed disability has affected him. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the June 2006 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board finds that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claims has been obtained. The evidence includes his service treatment records (STRs), records from the Social Security Administration (SSA), VA examination reports, private medical evidence, and statements from the Veteran. Neither the Veteran nor his representative has suggested that further assistance is necessary or that there exists outstanding relevant evidence. The Board also finds that the medical evidence of record is adequate for the Board to rely upon in this case. The Veteran has been afforded VA examinations in connection with the claims decided herein. The examination reports reveals that the examiners reviewed the claims folder and considered the lay contentions of the Veteran, as well as the private medical evidence, before expressing opinions regarding the likelihood that the Veteran had any skin condition or psychiatric disorder that is attributable to service. The Board finds that the VA examiners provided the opinions requested by the Board in its February 2012 Remand and that each opinion expressed is supported by an adequate rational and is consistent with the evidence of record. Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination in connection with each claim. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). Also for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). A. Skin Disorder On the issue of service connection, the Board notes that the Veteran's March 1972 entrance examination reveals that the Veteran's skin was clinically evaluated as normal at that time. An October 1975 treatment entry indicates that the Veteran was seen for a 10 to 12 centimeter laceration of the left wrist. The Veteran's February 1976 separation examination report notes an abnormal skin evaluation and refers to a February 1976 discharge summary from Darnall Army Community Hospital at Fort Hood, Texas. However, the discharge summary pertains only to the Veteran's mental health and contains no evidence of a skin disorder. On the accompanying report of medical history, the Veteran denied having any skin diseases. Private medical records dated in August 2003 note an assessment of actinic keratosis of the upper extremities and left ear. A biopsy of the left ear lesion was performed, the results of which revealed a well differentiated squamous cell carcinoma. In September 2008, the Veteran presented for evaluation and treatment of the squamous cell carcinoma. It was noted that the Veteran had a history of cutaneous malignancies, primarily on the extremities. Excision was recommended, which was performed that same month along with reconstruction of the 1.0 centimeter defect with full thickness skin graft. In March 2012, the Veteran was afforded a VA examination to determine the likelihood that any identified skin condition was attributable to service. The Veteran indicated that he could not remember being treated for any skin condition in service, but that a skin condition was noted at separation from service. The Veteran reported the removal of several pre-cancerous skin spots between 2001 and 2007, as well as excision of a carcinoma from his left ear. The examiner recorded diagnoses of actinic keratosis and squamous cell carcinoma and, upon review of the record and examination of the Veteran, opined that it was less likely as not that any current skin condition is related to the Veteran's military service. As rationale for that opinion, the examiner noted that the Veteran's STRs failed to reveal evidence of treatment related to a skin condition and did not indicate why the Veteran's skin was evaluated as abnormal at the time of separation. The examiner also noted that the Veteran could not remember being treated for a skin condition in service and was not treated for any such condition until 2001, which was 25 years after his separation from service. The examiner further commented on the fact that the Veteran was in the construction business for 35 years, which would suggest extensive sun exposure. The examiner noted that actinic keratosis develops from years of exposure to the sun and may be the earliest form of squamous cell carcinoma. The examiner thus concluded that it was more likely that the Veteran's current skin condition is related to his civilian employment than to service. Here, the Board finds that service connection for skin cancer must be denied because the record contains no nexus evidence linking actinic keratosis or squamous cell carcinoma to the Veteran's active military service. Indeed, the first evidence of any skin disease was in 2001 by the Veteran's reported history, and skin cancer was not diagnosed until more than 25 years after service and there is an absence of symptomatology during the intervening period. The Veteran has also not indicated that he experienced skin symptoms since service. (The one-year presumption for malignant tumors under 38 C.F.R. §§ 3.307, 3.309 is therefore not helpful, nor are the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology.) Consequently, even in consideration of the abnormal skin evaluation at the time of separation, the basis for which is not evident from the examination report, service connection is not warranted for actinic keratosis or squamous cell carcinoma on a direct basis, as a crucial element of service connection has not been shown. See Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability); see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). Further, although the Veteran believes that he has a skin condition related to service, the Board notes that etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion, especially in light of the facts that the evidence fails to demonstrate the onset of a skin condition in service and that a medical professional has linked the Veteran's actinic keratosis and squamous cell carcinoma to his post-service occupational sun exposure. See Jandreau, both supra. In finding that service connection for a skin condition is not warranted, the Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a basis for granting service connection. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2013). B. Psychiatric Disorder Relevant to the issue of service connection for a psychiatric disorder, the Veteran's March 1972 entrance examination reveals that the Veteran was psychiatrically evaluated as normal at that time. A September 1975treatment entry indicates that the Veteran had decreased coordination and smelled of alcohol. In October 1975, he was given a temporary psychiatric profile of "2" on account of alcohol abuse, and he was referred for treatment for alcohol and drug abuse. A February 1976 treatment record from Darnall Army Community Hospital notes a suicide attempt. A Minnesota Multiphasic Personality Inventory (MMPI) test was administered at that time, the results of which apparently revealed evidence of a schizoid character disorder. The Veteran's February 1976 separation examination report indicated an abnormal psychiatric evaluation and recorded a diagnosis of schizoid personality disorder. In March 2012, the Veteran was afforded a VA psychiatric examination, the report of which details the Veteran's childhood and family relationships. Relevant to the Veteran's mental health history, the examiner outlined the information contained in various treatment records dated in 2006, noting that the Veteran had experienced a number of deaths in the family, as well as had lost his house due to a hurricane, and was robbed, and was diagnosed with depressive disorder, not otherwise specified. He was reportedly on Xanax for anxiety and indicated a history of alcohol abuse, but denied treatment for substance abuse. The Veteran stated that he began to have trouble with depression and anxiety when he was diagnosed as coronary artery disease, reporting that he had his first heart attack in 1997, but later indicated that his depression began in service. His depression was exacerbated by the death of his father in 2003, and by a triple bypass, the death of his mother, and the loss of his home, all in 2004. He also reported a suicide attempt in 1997. Upon review of the claims folder and examination of the Veteran, the examiner diagnosed an anxiety disorder, not otherwise specified, and a history of alcohol abuse. No Axis II diagnosis was rendered. Regarding the diagnosis in service of a schizoid personality disorder, the examiner stated that there was no current evidence of a personality disorder. The examiner also noted that there was no associated psychological report in the Veteran's STRs to substantiate the diagnosis in service and stated that it was unclear why the diagnosis was given, as the Veteran had denied ever having symptoms associated with a personality disorder. Concerning the Veteran's post-service symptoms of depression and anxiety, the examiner found them to be unrelated to the Veteran's military service. Rather, the examiner attributed the Veteran's anxiety and depression to post-service stressors, such as the death of close family members, noting that there was no evidence of continuous mental health treatment from the time of discharge until 2005 when his primary care physician noted depression and anxiety. Upon consideration of the evidence of the record, the Board finds that service connection for a psychiatric disorder must be denied because the record contains no nexus evidence linking the Veteran's currently diagnosed anxiety disorder or noted depression to his active military service. Notably, the Veteran himself has indicated that his problems with depression and anxiety did not arise under 1997 when he was diagnosed as having coronary artery disease. The Veteran has further reported an exacerbation of his symptoms due to several stressors unrelated to service. Although the Veteran later alleged during the March 2012 VA examination that he experienced depression in service, the VA examiner opined against an association between the Veteran's anxiety and/or depression and service, relying on the lack of mental health treatment in service, the absence of mental health treatment until more than 25 years after service, and the Veteran's own statements regarding his post-service stressors. Consequently, even in consideration of noted suicide attempt in service, the details surrounding which are lacking, and the abnormal psychiatric evaluation at the time of separation, service connection is not warranted for anxiety and/or depression, as evidence establishing a nexus is lacking. See Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability); see also Maxson, supra. Regarding the Veteran's in-service diagnosis of a schizoid personality disorder, even if that diagnosis was correct and even if such a personality disorder existed today, personality disorders are not diseases or injuries under VA regulations and therefore are not disabilities for which service connection can be granted. 38 C.F.R. § 3.303(c) (2013); see Beno v. Principi, 3 Vet. App. 439, 441 (1992) (personality disorders are developmental in nature and are not considered as compensable disabilities under the terms of the rating schedule); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (Secretary was within his statutory authority under 38 U.S.C. A.§ 1101(3) in not adding personality disorders to list of chronic diseases); Dorland's Illustrated Medical Dictionary (Dorland's) 25 (31st ed. 2007) (defining "schizoid personality" as "a personality disorder"). There is also no evidence showing that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the noted personality disorder. See 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2013); Carpenter v. Brown, 8 Vet. App, 240 (1995). Turning to the Veteran's diagnosed history of alcohol abuse and noted in-service treatment for alcohol abuse, the law precludes disability compensation for alcohol or drug abuse on a direct basis. See 38 U.S.C.A. §§ 105(a), 1110 (West 2002). Compensation may, however, be paid "for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability." Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Here, the Veteran has not been shown to have a service-connected disability that caused or contributed to his alcohol abuse. Accordingly, the Veteran's diagnosed alcohol abuse may not be compensated for as a matter of law. In sum, the Board finds that the competent and probative evidence of record fails to establish that the Veteran has a currently diagnosed psychiatric disorder for which compensation is payable that is attributable to military service. Accordingly, service connection for an acquired psychiatric disorder and/or schizoid personality disorder must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is simply unable to identify a reasonable basis for granting service connection in this case. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a skin condition is denied. Entitlement to service connection for an acquired psychiatric disorder and/or schizoid personality disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs