Citation Nr: 18143248 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 13-30 829 DATE: October 18, 2018 ORDER Service connection for residuals of circumcision is denied. Service connection for tinea versicolor is denied. Service connection for acne is granted. Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for a right shoulder disability is remanded. Service connection for a right knee disability is remanded. Service connection for hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has any current disorder that is due to a circumcision in service. 2. The preponderance of the evidence is against finding that the Veteran has tinea versicolor that is related to active military service or events therein. 3. The Veteran’s acne was aggravated by his active duty service. 4. The Veteran’s account of in-service stressors is credible and consistent with the evidence of record. 5. The probative medical evidence of record demonstrates that the Veteran has a current diagnosis of PTSD, which as likely as not had its onset during or is otherwise related to stressors in his active duty service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the residuals of a circumcision have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for establishing service connection for tinea versicolor have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for acne have been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017). 4. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1966 to April 1969, including service in the Vietnam War. This matter is on appeal from a March 2010 rating decision. In his October 2013 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge. In a March 2018 statement, the Veteran withdrew the request for a hearing. The Board therefore deems the hearing request withdrawn pursuant to 38 C.F.R. § 20.702 (e) (2017). Neither the Veteran nor his representative have raised any issue with the duty to notify or duty to 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 veteran 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). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. Thus, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran had the disability for which service connection is sought at any time during the period on appeal. In the absence of proof of a disability during that period, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Residuals of Circumcision The Veteran’s service treatment records note a diagnosis of venereal warts on the penis, treated by circumcision. In an April 2013 VA examination report for PTSD, the Veteran “suspected” his current erectile dysfunction was due to his in-service circumcision, but that his doctor later told him that this was not correct. The Veteran’s statement was speculative and he also reported that a medical professional told him that he was incorrect. Therefore, this assertion is not probative. The record otherwise contains no medical evidence of a genital disorder at any point after the Veteran’s separation from active duty service. The Veteran has not provided a probative lay description of any residuals of his in service venereal warts or circumcision. As the lay and medical evidence of record does not establish that the Veteran had a genital disorder during the period on appeal, the Board finds that service connection for the residuals of circumcision is not warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,”); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). 2. Tinea Versicolor The Veteran contends that he has an unspecified skin condition on his back as a result of his service in Vietnam. A September 1967 service treatment record notes a rash on the Veteran’s back, diagnosed as tinea versicolor. This is the only mention in the Veteran’s service treatment records of any skin condition on his back. The record contains no medical evidence of a skin disorder on the Veteran’s back at any point after his separation from active duty service. The Veteran’s VA treatment records, despite documenting multiple dermatology appointments, do not mention tinea versicolor or a rash. An October 2008 VA treatment record specifically notes that there was no rash. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, although the Veteran is competent to report the appearance of a skin condition, he is not competent to provide an opinion as to whether this observed condition warrants any medical diagnosis. The Board must determine on a case-by-case basis whether a particular medical issue is within the competence of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran in this case is not shown to possess any pertinent medical training or expertise that would make him competent to diagnose himself with any particular skin disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, his sole comment on the matter is too vague to be of any probative value in that it does not describe any particular symptoms, only an unspecified “skin condition.” Thus, to the extent that the Veteran’s lay statements express an opinion that he has a current skin condition on his back, they are not competent medical opinions and they cannot be assigned any probative weight. The record does not contain any competent, probative evidence that the Veteran has been diagnosed with or treated for a skin condition on his back, including tinea versicolor, by any treatment provider during the period on appeal. As the evidence does not establish that the Veteran had a diagnosis of a skin condition on his back during the period on appeal, the Board finds that service connection is not warranted. See McClain, 21 Vet. App. at 321; see also Romanowsky, 26 Vet. App. at 293. 3. Acne The Veteran contends that he has a skin condition on his face that was “brought on by the stress and hazards in training camp.” The Veteran has a current diagnosis of acne and, during a May 2015 VA treatment appointment, he reported that his acne had persisted since boot camp. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as “noted.” 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Clear and unmistakable evidence is required to rebut this presumption of aggravation where the preservice disability underwent an increase in severity during service. Id. The Veteran’s January 1966 entrance examination report lists acne vulgaris and that it was not considered disabling. Therefore, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. A May 1966 service treatment record notes “[s]evere acne” and a need for a referral to a dermatologist. A November 1966 service treatment record of that dermatologist consultation notes the Veteran’s report of “very severe acne especially last 6 mos.” The dermatologist’s diagnosis was severe acne. The Veteran’s acne was noted at the time of entry into active duty service. There is also evidence in the Veteran’s service treatment records that his acne increased in severity during his active duty service. Absent any finding that this increase in severity was due to the natural progress of the disease, the Board does not find that there is clear and unmistakable evidence to rebut the presumption of aggravation. Service connection for acne based on aggravation of a preservice disability is warranted. 4. PTSD The Veteran contends that he has PTSD as a result of his active duty service in Vietnam. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128 (1997). The Veteran contends that at least some of his stressors are related to fear of hostile military activity. The evidentiary burden of establishing a stressor is reduced for such stressors; if a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). In this case, the Veteran’s reported stressors are consistent with the circumstances of his service and, as stated below, a VA psychiatrist has found that they are adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to them. For this reason, the Board finds that the Veteran’s lay statements are sufficient to establish the occurrence of his claimed stressors. In a May 1991 statement, the Veteran reported “severe psychological problems and flashbacks with regard to Vietnam.” In a September 1995 statement, the Veteran again reported “[p]sychological discomforts” after his service in Vietnam and added that his family and friends had commented on his symptoms. In a November 1995 statement, the Veteran added that he had sought treatment for PTSD through VA in the past. In July 2012, VA formally found that any records of this earlier treatment were unavailable. In May 2012, VA received a statement from a friend of the Veteran who had known him since 1963. This friend reported that, after the Veteran’s service in Vietnam, “he became aggressive and selective with whom he would call a friend.” The Veteran was afforded a VA examination in October 2012. The examiner found that the Veteran’s stressors were sufficient, but that his symptoms did not meet the diagnostic criteria for PTSD. Instead, the examiner diagnosed an anxiety disorder not otherwise specified. The examiner opined that the Veteran’s anxiety disorder was related to current stressors, such as unemployment and family relationship issues, instead of his active duty service. The Veteran has submitted a January 2013 examination by a private psychiatrist who served as a battalion surgeon in Vietnam. This examiner diagnosed the Veteran with PTSD and opined that it was due to his service in Vietnam. The Veteran was afforded an addendum opinion by the October 2012 VA examiner in March 2013. The VA examiner discounted the January 2013 private examiner’s opinion on the basis that the private examiner was “not employed, or trained, by the VAMC to conduct C&P examinations.” The examiner then opined that “[t]here is no question” that the October 2012 examination “is accurate” and that the Veteran “does NOT meet criteria for PTSD.” (emphasis in original). There is no legal basis for finding that a VA examiner is inherently more competent than a private examiner solely because the latter is not employed by VA. Were it otherwise, a veteran would never be able to rebut a VA examiner’s findings with private medical evidence. The VA examiner’s opinion of the private examiner’s competence to examine this Vietnam Veteran also did not account for the fact that the private examiner served in Vietnam as a battalion surgeon. Because the VA examiner’s opinion is based on a standard that finds no support in the law, the Board finds that it is of limited probative value. The Veteran has also submitted a March 2013 examination by a different private examiner. This examiner diagnosed the Veteran with PTSD and supported this diagnosis by providing examples to explain how the Veteran’s symptoms met each of the diagnostic criteria for PTSD. The examiner opined that the Veteran’s PTSD was at least as likely as not due to his active duty service in Vietnam and noted that the Veteran’s nightmares, recurring thoughts, and stressors were all related to his service in Vietnam. In September 2018, a Veterans Health Administration (VHA) psychiatrist reviewed the available medical records. The VHA psychiatrist opined that it is as likely as not that the Veteran’s reported stressors are related to fear of hostile military activity, that those stressors are adequate to support a diagnosis of PTSD, and that the Veteran has PTSD related to those stressors. Like the March 2013 private examiner, the VHA psychiatrist described the diagnostic criteria in detail and provided examples to explain how the Veteran’s symptoms met each of them. The VHA psychiatrist added that it is not uncommon for other disorders to occur with PTSD but that it remains as likely as not that the Veteran’s symptoms are attributable to chronic PTSD. A VA psychiatrist has found that the Veteran’s reported stressors are related to fear of hostile military activity, that they are adequate to support a diagnosis of PTSD, and that the Veteran’s PTSD is related to those stressors. 38 C.F.R. § 3.304(f)(3). The March 2013 private examiner and the September 2018 VHA psychiatrist were thorough in discussing the Veteran’s symptoms and their correspondence to the diagnostic criteria for PTSD. By contrast, the January 2013 private examiner provided no rationale for his opinion and the VA examiner relied on the inaccurate assumption that a VA examiner’s opinion is inherently more competent than that of a private examiner. In light of the totality of the circumstances, and giving the Veteran the full benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran has PTSD as a result of his service in Vietnam. Accordingly, the Board finds that granting service connection for PTSD is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). REASONS FOR REMAND 1. Service connection for a right shoulder disability is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has reported that his right shoulder disability was “brought on by a Jeep accident while in Vietnam.” In a November 2008 statement, the Veteran provided a detailed account of the circumstances of that reported accident. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. This evidence meets that threshold, and an examination is necessary. The examiner’s opinion should reflect the recent decision in Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) that “pain in the absence of a presently-diagnosed condition can cause functional impairment.” 2. Service connection for a right knee disability is remanded. The Veteran has reported that his right knee disability is due to the same Jeep accident as his right shoulder disability. For the same reasons as above, an examination is necessary for this issue. The examiner’s opinion should also reflect Saunders. 3. Service connection for hearing loss is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in September 2009. The examiner found the results unreliable and was unable to draw any conclusions from them. A remand is warranted to obtain an adequate examination. The Veteran was afforded a hearing examination during a June 2014 VA treatment appointment. It is not clear from the record whether the audiogram exists. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the Veteran, specifically including any audiogram from the June 5, 2014 VA audiology consultation. Make as many requests as are necessary to obtain relevant records and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. All negative responses must be documented. If no records are available, the claims folder must indicate this fact and the Veteran should be notified. 2. Schedule the Veteran for an examination with an appropriate clinician for his right shoulder disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner is advised that, even if there is no diagnosable pathology of the right shoulder, he or she must consider pain to constitute a disability if it causes functional impairment. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a right shoulder disability that began during active service; is related to an incident of service; or if arthritis is diagnosed, began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. Note that the fact that a right shoulder disability is not mentioned in the Veteran’s service treatment records cannot serve as the sole basis for a negative finding. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s November 2008 statement describing the circumstances of his reported right shoulder injury in Vietnam. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for his right knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner is advised that, even if there is no diagnosable pathology of the right knee, he or she must consider pain to constitute a disability if it causes functional impairment. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a right knee disability that began during active service; is related to an incident of service; or if arthritis is diagnosed, began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. Note that the fact that a right knee disability is not mentioned in the Veteran’s service treatment records cannot serve as the sole basis for a negative finding. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the Veteran’s November 2008 statement describing the circumstances of his reported right knee injury in Vietnam. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Schedule the Veteran for an examination with an appropriate clinician for his hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has hearing loss that began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. Note that the fact that the Veteran’s service treatment records do not show hearing loss as defined in 38 C.F.R. § 3.385 (2017) cannot serve as the sole basis for a negative finding. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel