Citation Nr: 1805956 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-04 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a skin condition of the bilateral lower extremities and shoulders. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for right shoulder disability. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from October 1965 to October 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Regional Office (RO) in Oakland, California. In March 2008, the RO, in part, denied entitlement to service connection for a right shoulder disability, degenerative disc disease of the lumbar spine, bilateral hearing loss, and rashes on the shoulders and back. In March 2009, the RO continued to deny these issues and also denied entitlement to service connection for PTSD and chloracne of the bilateral lower extremities. In October 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The issue of entitlement to service connection for an acquired psychiatric condition being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's current skin condition did not onset in service and is not etiologically related to service. 2. The Veteran's back disability did not onset in service or within one year of service discharge and is not etiologically related to service. 3. The Veteran's right shoulder disability did not onset in service and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a for a skin condition of the bilateral lower extremities and shoulders have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a for a back disability have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2017). Competent lay evidence is 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) (2017). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. Service connection may also be granted on a presumptive basis for certain chronic diseases, including arthritis, if shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War will also be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1) (2012). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii) (2017). The diseases presumptively associated with herbicide exposure are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (2017). Skin Condition The Veteran contends he has a skin condition of his lower legs and right shoulder due to service, to include his exposure to Agent Orange. At his October 2015 Board hearing the Veteran testified that when he was in Vietnam he was having issues with blotchy discoloring on his right shoulder and his lower legs. He reported he went to the hospital in 1973 and was treated with an antibiotic for his shoulder skin issue. The Veteran's service treatment records note he was seen several times in 1967 for tinea versicolor, noted to involve his torso and right elbow. He was also noted to have tinea carcinata of the groin in August 1967. He first underwent a VA skin examination in July 2007 at which time the examiner found no evidence of a skin condition other than peripheral vascular disease with hyperpigmented skin changes. He underwent another VA skin examination in June 2017. The examiner noted a diagnosis of tinea versicolor in 1967 and a diagnosis of stasis dermatitis in 2014. The examiner opined that the Veteran's tinea versicolor, diagnosed in service, had resolved with no complications, sequelae, or residuals. The examiner opined that the Veteran currently has unrelated bilateral varicose veins with stasis dermatitis. The examiner noted the Veteran's current clear skin of his trunk and right elbow. The examiner opined that it is less likely than not that the Veteran's current condition was incurred in or caused by service. The examiner also stated that the Veteran's stasis dermatitis with varicose veins was not aggravated by the Veteran's in-service tinea versicolor that had resolved. The Board acknowledges the Veteran's contention that his current skin condition was caused by exposure to Agent Orange in service. However, the Veteran has testified that he has not been diagnosed with chloracne, and the evidence does not reflect any such diagnosis. Therefore, as the Veteran has not been diagnosed with a skin condition presumptively associated with herbicide exposure by the VA, presumptive service connection under 38 C.F.R. § 3.307 is not for application. Although service connection may still be granted on a direct basis, the Board finds that a preponderance of the evidence in this case is against finding that the Veteran's current stasis dermatitis with varicose veins was caused by his service, to include exposure to Agent Orange. The Veteran is competent to report having skin problems in service, and in fact, his service treatment records support his contention. However, as a lay person, the Veteran does not have the education, training, or experience to opine as to a relationship between that experience in service and his current skin condition many years later. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The VA doctor who examined the Veteran in June 2017 has opined that the Veteran's in-service skin condition resolved and he currently has an unrelated condition affecting particularly his lower legs. The Board finds the VA doctor's opinion, which was based on consideration of the Veteran's own statements, his service treatment records, and a physical examination, to be the most probative as to the diagnosis and etiology of the Veteran's current skin condition. Therefore, as a preponderance of the evidence is against service connection for a skin condition, the benefit of the doubt doctrine does not apply, and the claim must be denied. Back Disability The Veteran has claimed he has a back injury as a result of a motor vehicle crash in service. At his October 2015 Board hearing, the Veteran testified that he was in a head-on collision in 1966 in which he hit the windshield of the vehicle he was in with his head and was knocked unconscious. He reported he has a lump in the center of his spine that has been uncomfortable for years. He also reported he has a low back injury due to a workplace accident after service. Service treatment records associated with the Veteran's claims file do not include any mention of an in-service motor vehicle crash, but the Board notes he is competent to report such an incident occurred. Service treatment records further include no reports of or treatment for any back complaints. Private treatment records from 2000 reflect that the Veteran was hit by a beam in the back or shoulder while at work after which he complained of low back pain. A December 2008 VA treatment record reflects that the Veteran provided a history of a car crash in service. He stated he has had neck pain since that incident. He also reported a post-service 2000 back injury. He reported he has bad back pain since that incident. In June 2017 the Veteran underwent a VA spine examination. He was noted to have diagnoses of lumbosacral strain, degenerative arthritis of the spine, and vertebral fracture. The examiner opined that it is less likely than not that his current back condition was incurred in or caused by service. The examiner explained that the Veteran himself specifically reported only having neck pain and headaches after his 1966 car crash. After the 2000 workplace injury he reported injury to his right shoulder and mid and lower spine. The examiner opined that working as a coach and playing baseball and basketball, as records indicate the Veteran did after service, would not have been possible with the lower spine condition shown on the Veteran's x-ray. The Board finds the opinion of the VA examiner to be the most probative as to the etiology of the Veteran's current back disability. The examiner considered the Veteran's report of an in-service car crash as well as his report of a post-service workplace injury, and discussed both his lay statements and the Veteran's medical records. The Board acknowledges the Veteran's own opinion that his current back disability is related to his in-service car crash. However, the Board finds that as a lay person he does not have the education, training, or experience to competently opine as to the etiology of his current back disability, a question complicated by many years and multiple injuries. See Kahana, 24 Vet. App. at 438. Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Finally, the evidence does not reflect that the Veteran had arthritis manifest in his back within one year following his separation from active service; therefore presumptive service connection is not for application. Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for a back disability, the benefit of the doubt doctrine does not apply, and the claim must be denied. Right Shoulder Disability The Veteran has claimed he has a right shoulder injury due to his service. At his Board hearing the Veteran testified that the right shoulder disability he is claiming is a skin issue, not a joint problem. However, at his June 2017 VA examination the Veteran reported he may have injured his right shoulder in his 1966 in-service motor vehicle crash. Service treatment records contain no reports of right shoulder complaints or records from the reported 1966 car crash. Medical treatment records from 2000 reflect that the Veteran was hit by a beam in the back or shoulder while at work. Imaging done in 2007 after the Veteran sought treatment for right shoulder pain after throwing a ball showed a partial thickness rotator cuff tear. The 2017 VA examiner opined that it is less likely than not that the Veteran's current right shoulder condition was incurred in or caused by service. The examiner noted that the Veteran himself reported only that he had headaches and neck pain after his 1966 motor vehicle accident. Further, after the 2000 work injury he reported injury to his right shoulder and mid and lower spine, both of which are documented in medical records. The Board acknowledges the Veteran's statement that his current shoulder injury may be a result of his in-service car crash, but finds that as a lay person he doesn't have the education, training, or experience to competently opine as to such a nexus. See Kahana, 24 Vet. App. at 438. Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for a right shoulder disability, the benefit of the doubt doctrine does not apply, and the claim must be denied. Duties to Notify and Assist The appellant has not referred to any deficiencies in either the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. ORDER Service connection for a skin condition is denied. Service connection for a back disability is denied. Service connection for a shoulder disability is denied. REMAND In June 2017 the Veteran underwent a VA mental health examination at which the examiner opined the Veteran does not have PTSD. However, he was diagnosed with unspecified depressive disorder and attention-deficit hyperactivity disorder (ADHD). The examiner opined that the Veteran's unspecified depressive disorder is less likely than not incurred in or caused by service; however, the same examiner indicated a suspicion that some of the Veteran's endorsed depression symptoms stem partially from his deployment experiences. In light of her comment that his depressive symptoms partially stem from deployment experiences, the Board finds that an addendum opinion is needed. With respect to his ADHD diagnosis, the examiner opined that the Veteran's symptoms of attention deficit disorder emerged prior to his service and are less likely than not incurred in or caused by his service. The Board notes that a veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability (1) existed prior to service and (2) was not aggravated by service is needed to rebut the presumption of soundness. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2017). Here, no diagnosis of attention deficit disorder is noted on the Veteran's entry into service. Although the VA examiner opined that the Veteran's attention deficit disorder existed prior to service, she did not opine as to whether the condition was aggravated by his service. Therefore, an addendum opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum VA opinion from the examiner who conducted the June 2017 VA mental health examination, or if unavailable, another suitably qualified examiner. A new examination is not necessary unless the examiner opines one is necessary. The Veteran's claims file should be provided to and reviewed by the VA examiner in rendering the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that any part of the unspecified depressive disorder is related to service? The examiner should comment on the June 2017 VA examination that suspected some of the symptoms stem partially form deployment. b) Is there clear and unmistakable evidence that the Veteran's attention deficit disorder preexisted service? c) If the evidence is clear and unmistakable that the Veteran's attention deficit disorder preexisted service, is the evidence also clear and unmistakable that the Veteran's attention deficit disorder was not aggravated by service? A complete rationale for all opinions is required. 2. Thereafter, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 (2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs