Citation Nr: 1540690 Decision Date: 09/22/15 Archive Date: 10/02/15 DOCKET NO. 10-00 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a skin condition. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for depressive disorder, to include as secondary to service-connected open angle glaucoma, both eyes with angle recession component, cataract with chronic iritis left eye (eye disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 1984, and from April 1987 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). Accordingly, the Board has re-characterized the psychiatric issue to address the theory of secondary service connection. With respect to the claim for service connection for a skin disorder, the Veteran filed a claim for service connection for acne keloidalis nuchae (AKN). Based on the Veteran's statements and a review of the record, it appears that the Veteran is claiming entitlement to service connection for other skin disorders as well. As such, the skin issue has been recharacterized to also encompass diagnoses other than AKN. See Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009) (holding that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In May 2015, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of the proceeding is of record. FINDINGS OF FACT 1. The Veteran has not been diagnosed with AKN at any time during the pendency of the appeal. Currently diagnosed pseudofolliculitis barbae (PFB), however, had its onset during the Veteran's active duty service. 2. The Veteran's low back disability is related to an injury sustained in service. 3. A psychiatric disability did not manifest during active service, a psychosis did not manifest within one year of discharge from active service, and a psychiatric disability was not caused by the Veteran's active service. 4. The Veteran's depressive disorder is aggravated by his service-connected eye disability. CONCLUSIONS OF LAW 1. PFB was incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2015). 2. The low back disability (lumbosacral strain and degenerative changes) is the result of injury incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 3. The Veteran's depressive disorder NOS is aggravated by his service-connected eye disability. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Inasmuch as the determination below constitutes a full grant of the issues on appeal, the Board need not address whether VA has satisfied its duties to notify and assist, as any error in notice or assistance is rendered harmless by the full grant of benefits sought on appeal. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Skin Condition During service, the Veteran received treatment for PFB and AKN, and was given a shaving profile. In written statements and in testimony before the Board, the Veteran reported that he experienced the same skin problems that began in service after his separation from service. The Veteran underwent VA examinations by dermatologists in December 2006 and March 2014. The 2006 examiner diagnosed PFB, but found no AKN. The 2014 examiner also diagnosed PFB, and noted that this condition began during the Veteran's military service. The record otherwise does not reflect that the Veteran has been diagnosed with AKN at any time during the appeal period, nor any time that may be considered so proximate to the filing of the claim that it may be considered evidence of a current disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the "current disability" requirement for service connection will be met when there is a diagnosed disability at the time of filing or during the pendency of a claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As the Veteran has not been diagnosed with AKN at any time during the appeal period, nor any period proximate to filing the claim, service connection for AKN is not warranted. However, as the Veteran's currently diagnosed PFB has been determined to have had its onset during active military service, service connection for PFB is warranted. Low Back Disability The Veteran contends that he injured his back during his second period of active service as a result of riding in Bradley tanks, and that he has continued to have back problems since that injury. A February 1980 entrance examination shows a normal clinical evaluation of the spine. In February 1982, the Veteran was treated for low back pain. He denied any known injury. The diagnosis was muscle pains. A March 1987 entrance examination shows a normal clinical evaluation of the spine. In June 1987, the Veteran was treated for low back pain of two days' duration. In November 1987, he again complained of low back pain as well as a burning sensation. At that time, he stated that he had injured his back in August 1987. The diagnosis was mechanical back pain. May 1988 X-rays of the lumbar spine were negative. A November 1988 Chapter 13 examination included a normal clinical evaluation of the spine. Post-service VA records show that the Veteran received treatment for low back pain in April 2010. X-rays of the lumbosacral spine showed degenerative changes. There are conflicting opinions on whether the Veteran's currently diagnosed low back disability is related to his active service. In December 2006, a VA examiner reviewed the claims file. He diagnosed a normal lumbosacral spine, but noted that X-rays showed minimal narrowing of the L4/L5 disc space and minimal subluxation of the sacrum anteriorly at the L5/S1 disc space. The examiner opined that the Veteran's low back pain "is not related to the low back pain in the military service." He reasoned that the trauma in service was very minimal and that there was no current spasm or tenderness in the Veteran's lumbosacral spine. In March 2014, a different VA examiner reviewed the claims file and diagnosed lumbosacral strain. He noted that the Veteran injured his back during service and that he continued to have pain "on and off" since that time. He opined that "[i]t is at least as likely as not" that the Veteran's current back disability was incurred in service. The Board finds that the medical evidence of record for and against the claim is in relative equipoise. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for a low back disability is granted. Depressive Disorder The Veteran contends that his depressive disorder is related to service, and that he "had several episodes of depression while in the Army." See December 2009 VA Form 9. Specifically, he attributes his current condition to "the ordeal of entering the Army from the Air Force and the anxiety of dealing with family problem[s] and issues with the Army." See September 2005 VA Form 21-4138. In the alternative, the Veteran contends that his depressive disorder was caused or aggravated by his service-connected eye disability. There is no evidence in the service treatment or personnel records of psychiatric symptoms or a psychiatric disorder. A February 1980 entrance examination contains a normal psychiatric evaluation. A March 1987 entrance examination also contains a normal psychiatric evaluation. In January 1988, the Veteran was noted to have ineffective coping skills. He denied having any psychological problems. An April 1988 counseling form states that the Veteran was having problems adjusting to the Army. In August 1988, the Veteran received four Article 15s for failure to report to formation and being absent from duty. (The Veteran maintains that he missed formation because he was depressed. See December 2009 VA Form 9). An August 1988 counseling form states that the Veteran had a "negative" attitude toward the Army. A November 1988 Chapter 13 examination contains a normal psychiatric evaluation. The Veteran was eventually discharged from service due to his behavior and attitude in February 1989. Post-service treatment records reflect treatment for polysubstance abuse, depression, rule out organic affective disorder, personality disorder, adjustment disorder, and anxiety. While the Veteran has received several psychiatric diagnoses throughout the years, the more recent medical evidence of record reflects a current diagnosis of depressive disorder NOS. A December 1992 VA discharge summary shows that the Veteran complained of being "severely depressed and hopeless." He denied a previous psychiatric history, and reported a 10-year history of polysubstance abuse with inpatient treatment. He was diagnosed with "polysubstance use, secondary depression." A January 1998 VA treatment record shows that the Veteran was admitted for inpatient treatment of substance abuse. He reportedly started drinking during his first period of service, and stated that his drinking increased during his second period of service. The Veteran was tearful and depressed. He was diagnosed with cocaine dependence, alcohol abuse, and substance induced mood disorder. Initially, the Board notes that there is no diagnosis of a psychosis within one year of discharge from service. Therefore, presumptive service connection is not warranted. See 38 C.F.R. §§ 3.307, 3.309 (2015). With respect to direct service connection, despite the Veteran's post-service allegations that his behavioral problems in service were related to depression, his service treatment records are negative for any complaints of or treatment for psychiatric symptoms. The earliest evidence of a psychiatric disability is December 1992 when the Veteran was admitted to a VA hospital for substance abuse, nearly four years after discharge from his second period of active service. Furthermore, there is no opinion which provides a medical nexus between the Veteran's currently diagnosed depressive disorder and his service. While the evidence shows several psychiatric diagnoses after service, the competent and probative evidence of record does not etiologically link any psychiatric disorder to service or any incident during service. Accordingly, service connection on a direct basis is unwarranted. The Board acknowledges that the Veteran is competent to testify as to the presence of mental health symptoms, both during and after service, which are capable of lay observation. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, to the extent that he relates those problems to service, his assertions are not probative. As a lay person, he has not been shown to have the clinical expertise to opine as to medical etiology or to render a medical opinion. Accordingly, the Veteran's assertions as to medical causation and etiology, absent corroboration by objective medical evidence and opinions, lack sufficient probative value to establish a nexus between the currently diagnosed depressive disorder NOS and his time in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that service connection on a secondary basis for depressive disorder NOS is warranted. In correspondence dated in December 2008, the Veteran's treating VA psychologist noted that the Veteran had been treated since August 2006 for major depression that was exacerbated by diagnoses of lymphoma, glaucoma, and cataracts. She noted that the Veteran's visual problems "have been a constant stress" and that he "has understandably been increasingly fearful of becoming blind in one or both eyes." The psychologist opined that "the ongoing seriousness of medical problems including eye problems have exacerbated and prolonged [the Veteran's] [d]epressive [d]isorder." Similarly, August 2011, August 2013, and January 2015 VA psychotherapy records show that the Veteran was being treated for adjustment disorder with depression and anxiety, as well as major depression, "due to serious medical conditions including ophthalmological diagnoses for which he is service-connected." The Board acknowledges that a March 2014 VA opinion stated that "[i]t is less likely than not" that the Veteran's depression is proximately due to, the result of, or aggravated beyond its natural progression by his service-connected aphakia. The examiner also noted, however, that the Veteran's aphakia "is one of many medical illness[es] that are very likely related to his [depression]." The Board finds that the opinion is inherently contradictory and, thus affords the opinion little probative weight. Based on the foregoing evidence, the Board finds that the Veteran currently has depressive disorder that is aggravated by his service-connected eye disability. For these reasons, the criteria for service connection have been met. Service connection is not warranted for alcohol or drug abuse. Although the evidence indicates that the alcohol and cocaine dependence began during service, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C.A. §§ 105, 1110 (West 2014); 38 C.F.R. § 3.301(a) (2015). An alcohol or drug abuse disability may only be service connected if it was acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The evidence does not suggest that the Veteran's substance abuse was acquired as a symptom of, or secondary to, the service-connected depressive disorder NOS. Rather, the evidence, to include VA treatment records and the Veteran's own histories, specifically indicates that it was not acquired as a result of the depression. ORDER Service connection for PFB is granted. Service connection for a low back disability is granted. Service connection for depressive disorder as secondary to a service-connected eye disability is granted. ____________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs