Citation Nr: 1343094 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 08-20 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from August 1974 to July 1976. This appeal to Board of Veterans' Appeals (Board/BVA) is from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2010, in support of his claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. After reopening two of the claims because of new and material evidence, the Board then proceeded to remand all three claims in December 2010 for further development. In this decision, the Board is deciding the claims for service connection for skin and low back disorders, but instead again remanding the claim for an acquired psychiatric disorder for still further development. And, like before, the remand of this remaining claim to the RO will be via the Appeals Management Center (AMC). FINDINGS OF FACT 1. There is competent and credible evidence the Veteran's current acne and hidradenitis suppuritiva are as likely as not related to skin disorders treated during his service. 2. He had episodes of low back muscle strain in service, but the competent, credible, and therefore ultimately probative evidence indicates his current low back disorder is less likely than not related to his service, and lumbar arthritis has not been shown to have incepted during his service or within one year of his discharge. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the acne and hidradenitis suppuritiva were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. A chronic lumbar spine disability, however, was not incurred in or aggravated by his service and may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and any medical or lay evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1). A July 2004 letter explained the evidence necessary to substantiate these claims and VA's and the Veteran's respective responsibilities in obtaining this necessary supporting evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The July 2004 letter was provided to the Veteran prior to initially adjudicating his claims, so in the preferred sequence. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although no letter explained how a "downstream" disability rating and effective date are determined, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), this additional notice is not pertinent to claims since the claim for a skin disorder is being granted and the claim for a low back disorder denied. So, as concerning the skin disorder, the Veteran is receiving the requested benefit, regardless. And as concerning the low back disorder, these downstream issues do not come into play inasmuch as service connection is not being granted. With regards to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), but also his post-service VA treatment records, private treatment records, reports of VA examinations, and his personal assertions, including those he made during his videoconference hearing before the Board. Regarding his videoconference hearing before the Board, 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Bryant v. Shinseki, 23 Vet. App. 488 (2010). To this end, during the Veteran's hearing all parties agreed as to the issues on appeal and there was a general discussion of evidence pertinent to the skin disorder claim. The representative did not initiate any testimony regarding the low back during the hearing and, while no evidence was suggested for the low back disorder, the undersigned granted a 60-day abeyance period to allow the Veteran and his representative time to submit additional evidence concerning this claim. Ultimately, then, the Veteran was not prejudiced because the Board's December 2010 remand sought critical evidence, namely, evidence linking the disability to service, which was needed to substantiate the claim. Neither the Veteran nor his representative expressed dissatisfaction with the hearing. As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicating these claims based on the current record. Legal Criteria and Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may be granted for a disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a relationship or correlation between the disease or injury in service and the present disability - the so-called "nexus" requirement. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). A. Skin Disorder The Veteran contends he has a skin disorder that includes psuedofolliculitis and lesions all over his body that he attributes to his military service. See hearing transcript pages 5 to 12. The Veteran's skin problems, such as acne comedones, seborrheic dermatitis, psuedofolliculitis, perirectal abscess, and contact dermatitis, are well documented in his STRs and were shown to affect various parts of his body. The records also show he had multiple profiles in service because of his skin-related issues. Post-service VA medical records also reflect treatment for skin disorders and, during his February 2011 VA compensation examination, the Veteran was noted to have then current symptoms of draining sinuses, abscesses, and acne on his face, underarms and groin. The evaluating physician diagnosed hidradentitis suppurativa. Although he opined this disorder was less likely than not caused by or a result of the Veteran's military service, his rationale suggested otherwise. He stated, "[the Veteran] is here for evaluation of acne comedones, [pseudofolliculitis barbae] PFB, and perirectal abscess. All three of these conditions are a result of his hidradenitis suppuritiva. This condition started during his military service and may have been exacerbated by his military service. However, this condition is multifactorial in etiology and is not caused as a direct result of his military service." (Emphasis added). The examiner's opinion that the Veteran's service did not necessarily cause his skin condition in no way detracts from or negates his statement that the current hidradentitis suppuritiva incepted during his service and that the other skin disorders, in turn, were caused by the hidradentitis suppurativa. See 38 C.F.R. § 3.310(a) and (b) (permitting service connection additionally on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability). Regardless of the exact etiology, the hidradentitis suppuritiva had its onset during his service and the other skin disorders noted were secondary to this condition. However, since only the current disorders that have been noted during the appeal have been acne and hidradentitis suppuritiva, the grant of service connection is limited to these skin disorders. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Resolving all reasonable doubt in the Veteran's favor, service connection for these current skin disorders is granted. B. Low Back Disorder The Veteran's STRs reflect low back complaints and treatment in November 1974, January 1975, and March 1975, and he has current diagnosis of degenerative disc disease (DDD), degenerative joint disease (DJD), and herniation. However, the probative, meaning competent and credible, evidence indicates he does not have a current low back disorder related to his service. See, e.g., Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran asserts the treatment in service for a back disorder is evidence of a chronic (i.e., permanent) disease, so he essentially contends service connection should be granted on the basis of having a chronic back disorder in service. Certain diseases are considered chronic, per se, including DJD, i.e., arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. 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 diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in claims for arthritis, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - also benefit from a somewhat more relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When one of these enumerated diseases is at issue, a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Here, the chronicity of the Veteran's low back disorder in service is legitimately questioned. He had 3 episodes of back pain in service, two of which were identified as a back/muscle strain. Each occurrence appeared to be an isolated episode that resolved. The first episode was characterized as back strain and he was restricted from heavy lifting for the rest of the day. The second episode was assessed as a muscle strain and he was restricted to quarters for 48 hours. The third episode was assessed as low back pain and he was restricted from doing heavy lifting for 3 days. There is no evidence the short-term treatment prescribed did not resolve his symptoms and he was not shown to have sought any further treatment or to have needed any. At no time were his complaints of back pain noted as chronic and his back was found to be normal on separation examination. Even if his low back complaints could be construed as chronic, he was noted to have back or muscle strain in service, and neither is a currently diagnosed low back disorder. The regulations require manifestations of the same chronic disease to grant service connection based on chronicity in service. See 38 C.F.R. § 3.303 (b). Since there are inadequate facts showing chronicity in service, the Board must consider whether there was continuity of symptoms after discharge. "Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b). Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). While continuity of symptoms and not treatment can provide an alternate route for establishing service connection without supportive nexus evidence, the evidence still must be evaluated under the three-step analysis. The evidence of continuity of symptoms is based on the Veteran's statements, so it is considered lay evidence. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 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. 38 C.F.R. § 3.159(a)(2). The Veteran would have first-hand knowledge of low back pain, so his lay evidence of continuing low back pain since service is competent. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Once competency is established the Board must then determine if the evidence is also credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran's lay testimony of continuity of symptoms since service is not credible. He indicated he had severe back problems due to his service and that his back was in fact "destroyed" in service from heavy lifting. However, the record indicates he engaged in physical labor and other strenuous activity after service, so not just during his service. During an April 2000 VA examination, he reported doing construction work after service and continuing to do so until 1986. See also a June 2003 VA treatment record. A November 1999 decision letter from the Social Security Administration (SSA) shows he injured his lumbosacral spine in October 1996 in heavy lifting that involved lifting a boat. After the heavy lifting injury he continued to have chronic low back pain with radiation to his lower extremities. The SSA's decision also indicated the private treatment records during that time showed he had reported a long history of back pain since falling off a train in the Army and that his back pain was exacerbated by construction work. It is not credible there would have been no findings on separation examination if the Veteran had severe back problems at that time, as he now alleges, nor would he have been able to perform approximately 10 years of strenuous construction work with a bad back. The Board's finding is based on a VA examiner's opinion, which will be discussed in further detail below, so not just on the Board's view. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). This coupled with the incorrect medical history the Veteran has provided about is back (i.e., falling off a train in service) shows he is, at best, an unreliable historian. Considering the reported history in light of the other evidence of record, the Board concludes his reported history is not credible and, therefore, not ultimately probative. In the absence of probative evidence of continuity of symptoms since service, service connection cannot be granted on this alternative basis. The presumption of service connection also is not available since the Veteran was not shown to have arthritis to a compensable degree in the one-year grace period after he separated from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137, 38 C.F.R. §§ 3.307, 3.309(a). Since there is no presumption or alternate means to establish service connection based on chronicity in service or continuity of symptomatology after, nexus evidence is needed to support the claim. The only probative evidence of record as to the etiology of the Veteran's low back disability was offered by the February 2011 VA compensation examiner, who also reviewed the claims file for the relevant history. This evaluating physician concluded the Veteran's lumbar condition was not caused by or a result of the low back conditions in the military. This examiner's rationale was that the low back conditions in the military were so trivial the Veteran needed few follow-ups in service, had no low back problems at his discharge examination from service, he worked at the strenuous job of pipefitter off and on, and he was strong enough in 1996 (20-plus years after the lumbar strain in service) to lift a boat. According to this VA compensation examiner, it is likely the boat lifting plus the Veteran's civilian job are the proximate cause of his present condition. The X-ray changes also are evidence against a military service causation since, although they are significant, they are not likely to be due to a 35-year-old condition. The opinion is well reasoned, consistent with the evidence, and is highly probative. Most significant is that is contains the required explanatory rationale because that is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there is no competent and credible evidence that is at least equally probative and supportive of the claim. The Veteran's representative asserted in an October 2013 brief that the Veteran's ability to lift a boat does not denote whether he had a back problem and that his inability to do any lifting now supports the presence of a debilitating injury in service. The presence of a current low back disability does not establish it was incepted in service, particularly when a physician opined it was more likely due to post-service employment and injury. The Board does not find the representative's reasoning persuasive or more probative than the VA physician's opinion. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Here, for the reasons and bases discussed, the preponderance of the evidence is against this claim of entitlement to service connection for a low back disorder; therefore, this claim must be denied. ORDER Service connection for acne and hidradentitis suppuritiva is granted. However, service connection for a low back disorder is denied. REMAND Additional development and notice is needed before the Board may decide the remaining claim of entitlement to service connection for an acquired psychiatric disorder, inclusive of PTSD. Accordingly, this remaining claim is REMANDED for the following additional development and consideration: 1. Provide the Veteran notice regarding how "downstream" disability ratings and effective dates are determined when service connection is granted, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 2. Complete all development deemed necessary regarding the claim of PTSD based on personal assault, including requesting additional information from the Veteran regarding his purported stressor(s) in-service, including specific dates and places where these alleged events occurred. Further, in accord with 38 C.F.R. § 3.304(f)(5), he must be advised of the alternate sources of evidence for substantiating his account of an in-service personal assault. 3. After obtaining all additional records and evidence, return the Veteran's claims file to the VA psychologist, if available, who performed the March 2011 VA examination to obtain a supplemental opinion. The claims file and all pertinent electronic records not associated with the physical claims file must be reviewed and considered. a) The reviewer is advised all reported stressors concerning picking up body parts of soldiers are not corroborated. The Veteran did not serve in Vietnam or have any overseas service. b) The reviewer is advised that the March 2011 opinion that "PTSD is likely related to in[-]service trauma of being beaten by fellow soldiers, therefore it is likely due to fear of hostile military activity", is inconsistent with 38 C.F.R. § 3.304(f)(3) since a stressor involving fear of hostile military or terrorist activity does not apply when the stressor, as here, is an alleged assault by a fellow service member. Hall v. Shinseki, 717 F.3d 1369 (Fed. Cir. 2013) (holding that § 3.304(f)(3) can apply only if a Veteran's claimed in-service PTSD stressor relates to an event or circumstance that a Veteran experienced, witnessed, or was confronted with and that was perpetrated by a member of an enemy military or by a terrorist). c) The Court, however, has set a relatively low bar for interpreting a claim for PTSD as one involving a personal assault stressor for which the provisions of § 3.304(f)(5) are applicable. See, e.g., Bradford v. Nicholson, 20 Vet. App. 200 (2006) (Veteran alleged that his sergeant had kicked him down a set of stairs). Examples of personal assault include rape, physical assault, domestic battery, robbery, mugging, stalking, and harassment. See VA Adjudication Procedure Manual M21-1MR, Part III, Subpart iv., Ch. 4, Section H, part 30(a) (Aug. 1, 2006); VA Adjudication Procedure Manual M21-1MR, Part IV, Subpart ii., Ch. 1, Section D, part 17(a), (c) (Dec. 13, 2005). Regarding stressors involving a personal assault, the reviewer is advised that the following examples may be considered sources, when appropriate, to corroborate the claimed stressor even if there is no documentation of the incident(s) in service: * Records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. * Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. d) Based on the available evidence, the reviewer must comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran was personally assaulted during service as alleged. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the lower Veterans Court (CAVC) had erred when determining that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal-assault cases). e) If the response to question d) is in the affirmative insofar at the alleged personal assault occurring, then also indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran has PTSD as a result or consequence of the personal assault. f) Provide a complete explanation of all opinions and conclusions reached, if necessary citing to specific evidence in the file. The examination report must indicate whether pertinent records in the claims file were reviewed in conjunction with the examination. 4. If any opinion sought in the remand is not addressed or does not contain the required explanatory rationale, return the opinion as inadequate for all necessary additional information. 38 C.F.R. § 4.2. 5. Then readjudicate this claim for a mental disorder in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs