Citation Nr: 18146716 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 10-25 322 DATE: November 1, 2018 ORDER Service connection for vitiligo and left shin 'scarring' (dermatitis) is denied. Service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD) is denied. Service connection for vision impairment is denied. FINDINGS OF FACT 1. The Veteran's current vitiligo and left shin dermatitis were not manifest in service and are unrelated to service. 2. The Veteran's current psychiatric disease was not manifest in service, is unrelated to service, and was not caused or aggravated by a service-connected disability. 3. The Veteran's current senile cataracts and dry eye syndrome were not manifest in service and are unrelated to service. No in-service eye disease or injury causing vision impairment is shown, and his refractive error and myopia are not diseases or injuries within the meaning of VA compensation laws and regulations. CONCLUSIONS OF LAW 1. The criteria for service connection for vitiligo and left shin 'scarring' (dermatitis) have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for psychiatric disability, to include PTSD have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 3. The criteria for service connection for vision impairment have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from May 1973 to April 1976. He also had a period of service shortly after this, until February 1977, which was other than honorable. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating action by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in January 2015, and a transcript of the hearing is associated with his claims folder. At the time, the Veteran waived RO consideration of additional evidence submitted. The case was before the Board in March 2015 and January 2017. In January 2017, the Board reopened the claim for service connection for a psychiatric disorder, decided a number of matters, and remanded those listed on the cover page for additional action. In a March 2017 motion for reconsideration, the Veteran requested a recusal of the undersigned Veterans Law Judge from deciding his case, based on the undersigned's findings with respect to a claim decided in January 2017. In August 2017, a Deputy Vice Chairman of the Board denied the motion. In response to further motions from the Veteran, the Chairman of the Board denied the Veteran's later motion for reconsideration. Recusal is appropriate where there are circumstances that might give the impression of bias either for or against the appellant. 38 C.F.R. § 19.12. In light of the action taken by the Board's Chairman and Deputy Vice Chairman, and in light of the fact that no one has identified circumstances that might give the impression of bias, there is no basis for recusal. The Veteran was previously represented by the American Legion, but he submitted a power of attorney in favor of attorney Sara K. Hill in December 2017, within 90 days of the notice of certification and transfer of his records to the Board. Accordingly, she is now his representative. See 38 C.F.R. § 20.1304. Recently, the RO has acknowledged a notice of disagreement concerning the rating to be assigned for service-connected seborrheic dermatitis of the Veteran's face and scalp. The RO will take any additional action required on those matters in due course. Additionally, in 2018, four additional issues were certified for appeal to the Board. However, the Veteran has requested a Board videoconference hearing for those issues and that has not been scheduled yet. Board practice dictates that the Veteran will be contacted regarding the hearing that he requested for these issues, and then these issues will be decided at a later time. The Board rendered a decision on the claims in March 2018. However, that decision was vacated after the representative pointed out that the Veteran had requested additional time to submit evidence in January 2018 which went unanswered. Additional evidence was subsequently submitted in July 2018 with a waiver of initial RO consideration, and the appeal is now ready for Board review. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an 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 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Exhaustive efforts have been made to obtain all identified available relevant and necessary evidence, including service treatment records. It appears that not all of the perhaps once existing service treatment records are of record. It also appears that there has been substantial compliance with efforts to obtain records which the Board was unable to locate at the time of its March 2015 remand. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. 1. Service connection for vitiligo and left shin 'scarring' (dermatitis) Based on the evidence of record, the Board concludes that service connection is not warranted for the currently shown vitiligo or left shin dermatitis, as the preponderance of the evidence indicates that they were not manifest in service and are unrelated to service. Service treatment records do not show vitiligo or any left shin phenomenon. The Veteran was treated for scaly skin over his face in service in March 1976, and this has now been service-connected and rated as seborrheic dermatitis of the face and scalp. On service discharge examination in March 1976, the Veteran reported that his health was good and he did not know if he had a skin disease. A service examination from January 1977 (during the other than honorable period of service) showed normal skin. Post-service records note that the Veteran complained of dry skin and the impression was "seborrheic dermatitis." See, for example December 1991, November 1992 U.S. Medical Center for Federal Prisoners records. In May 2000, the Veteran reported that a support brace for his leg irritates his skin. In January 2001, the Veteran reported that he had had a recent infection on his left leg from wearing a knee brace. On VA examination in January 2002, he had no generalized skin disorder and a normal skin appearance. A history of vitiligo was noted in January 2004. Examination showed several 1 to 2 centimeter, well demarcated hypopigmented patches with follicular repigmentation on the Veteran's left anterior and lateral leg. In correspondence received in March 2009, the Veteran reported that vitiligo appeared on his skin as a direct result of the use of a brace issued by the VA Medical Center while he was an active participant in the Vocational Rehabilitation and Education program. On VA examination in March 2017, after the January 2017 Board remand ordering the same, the examiner reviewed the claims folder, examined the Veteran, and indicated that the Veteran has vitiligo which is less likely than not due to service. The examiner indicated that it came nearly 2 decades after service ended, and that it has no established medical relationship to his service-connected seborrheic dermatitis or to claimed contaminated medical shots from in service which the Veteran had reported. Service treatment records do not support a relationship to service either. Therefore, his vitiligo is less likely than not related to service. The examiner indicated that a dermatitis found on the Veteran's shin was not scarring, but is, per the records, proximately due to the use of a knee brace post-service. [The Veteran is not service-connected for a knee disability]. The examiner noted that records show stippled hypopigmented skin with erythema due to the pressure of a brace being diagnosed in 2001, after service. Therefore, this shin dermatitis is less likely than not due to service. The Veteran had mentioned in-service staph infections in 1974 around the time of a broken left ankle, and after umbilical hernia surgery. However, the examiner found these events to be unrelated to his vitiligo or shin dermatitis. While the Veteran indicated in April 2017 that his vitiligo has been present since service, he has not demonstrated the competence to diagnose vitiligo, see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), and the preponderance of the evidence of record indicates that it has not been present since service as claimed, and that neither it nor the Veteran's left shin dermatitis was manifest in service or is related to service. 2. Service connection for psychiatric disability, to include PTSD Based on the evidence of record, the Board concludes that service connection is not warranted for any current psychiatric disorder, as the preponderance of the evidence indicates that it was not manifest in service, is not a psychosis manifest within 1 year of separation from the Veteran's honorable period of service, is unrelated to service, and was not caused or aggravated by a service-connected disability. There is no treatment shown for psychiatric problems during the Veteran's honorable service. One partial undated service treatment record showing a provisional diagnosis of depressive neurosis in Georgia is shown, but this was clearly from during the Veteran's dishonorable period of service, as explained further below and/or can be deduced from information reported below. A service examination from January 1977 (shortly before the Veteran's discharge from his other than honorable period of service) showed that the Veteran was normal psychiatrically, and the Veteran denied having or having had psychiatric symptomatology and indicated that he was in good health at the time. In May 1994, the Veteran was evaluated for psychiatric pathology while in prison. A firm diagnosis was not reported, but there was an impression of schizoaffective disorder; malingering was also suspected, as was an adjustment disorder. A May 1997 VA examination report indicates a thought disorder. In June 2015, the Veteran stated that he has PTSD due to traumatic injury to his left extremities in service, the near-death diagnoses for which he was quarantined, and continuous in-service trauma of having to shoot leftie. He also reported constant mistreatment from supervisors and the quest to support his family. On VA psychiatric examination in March 2017, after the January 2017 Board remand ordering the same, the Veteran indicated that he had not worked since 2005 and that his depression began because he was unable to work. This is consistent with his January 2015 Board hearing testimony that it was diagnosed in about 2005. The examiner indicated that the Veteran has PTSD but that it is due to a pre-service stressor of the Veteran's sister being gang-raped while he was forced to watch it. The examiner indicated that the Veteran also has major depressive disorder, which is not related to service. The VA examiner reviewed the record and examined the Veteran and found that the Veteran's major depressive disorder is due to his grieving his wife's death, which would have occurred many years post-service, as he indicated in a June 2011 VA Form 21-526 that he was then married, and due to his frustration over having a number of medical problems (again, years post-service) but ‘no medical record evidence to support his claims’ (for service connection). (This is consistent with the evidence of record including a January 2015 VA medical record.) As a result, the examiner concluded that these diagnoses are less likely than not causally related to service. A July 2018 letter from a private psychologist has recently been submitted. The private psychologist did a videoconference interview with the Veteran. Based on that and his review of the record, he believed that the Veteran has schizophrenia which developed during service. In support of this, he reported that the Veteran was incarcerated in 1989, when schizophrenia verses malingering was diagnosed. This was years post-service. He also noted diagnoses of bereavement and depressive disorder in November 2004. The private psychologist found that the Veteran's account of the onset of his auditory hallucinations (that they started after an unnamed operation in service) was believable, and felt that his presentation during the interview was unquestionably and unmistakably that of an individual afflicted with schizophrenia. He noted that the Veteran stated that he started hearing voices after an unnamed operation in service. The only operation shown in service is an umbilical herniorrhaphy which occurred between June and July 1975. The private psychologist relied on symptomatology and the provisional depressive neurosis diagnosis reported during the Veteran's other than honorable period of service to support his conclusion that the Veteran’s current schizophrenia manifested in ‘service’. Symptoms and diagnoses identified during an other than honorable period of service cannot serve as the basis for a finding of in service incurrence. The private clinician felt that the Veteran did not get asked the right questions in the right way previously, to render the right diagnosis (schizophrenia). However, the Veteran denied psychotic symptoms at the time of his psychiatric evaluation during his other than honorable period of service, and his behavior, cognition, perception, insight, and judgment were all normal. His denial of psychotic symptoms at that time, combined with the normal clinical findings at the time that could otherwise suggest psychosis, are probative evidence that he did not have a psychosis at that time. The symptoms instead were found to be provisionally consistent with the depressive neurosis reported at the time, and this is supported by the blunted affect and racing thoughts, the only significant positive clinical findings found at the time. One important factor to consider is that these symptoms relied upon as the basis of in service incurrence by the private clinician were during an other than honorable period of service. As such, they cannot be the basis of an award of compensation. As the private psychologist essentially bases his nexus opinion on symptomatology that was present after honorable service was over, treating that as ‘service’ symptomatology, the medical opinion lacks probative value. Further, the psychologist used the Veteran's present day recollection of what his symptoms were during his other than honorable period of service to conclude that he had schizophrenia in service, but the Veteran's current reports of psychotic symptoms in service (auditory hallucinations and bizarre behavior) are outweighed by his denial of auditory and visual hallucinations during his other than honorable period of service, the notation at the time that his behavior was normal, and another notation at the time that there had been no previous psychiatric illness. The private psychologist’s medical opinion is clearly based in large part on a factual background which is incorrect, and also on an incorrect premise that the Veteran could be service connected for psychiatric disease related to his other than honorable period of service, and so it is not probative. Reonal v. Brown, 5 Vet. App. 458 (1993). As noted, the time of the provisional diagnosis of depressive neurosis was during the Veteran's other than honorable period of service. Psychiatric symptoms or disease may have been manifested during the Veteran's other than honorable period of service, but the preponderance of the evidence is against a finding that any such symptoms or disease were manifestations of a psychosis. The contemporaneous evidence outweighs medical evidence developed many years later and, by the private clinician’s own account, are based largely on the Veteran’s own recollections. The Veteran’s own recollections lack credibility due to self-interest and due to the suggestion of malingering in the record. The service treatment record mentioning possible depressive neurosis was created during the Veteran’s period of other than honorable service. First, the record shows that the Veteran was stationed in Georgia as it indicates that the Veteran was to be transferred from Ft. McPherson to Ft. Gordon (both installations in Georgia) for further evaluation. A review of his service personnel records show that he was stationed at Ft. Stewart, Georgia during his period of other than honorable service from September 1976 onward and was dropped from the rolls due to desertion in October 1976. For all other parts of the Veteran’s service after February 1974, except for immediately before his other than honorable service discharge when he was moved to Ft. Knox, his records show that he was stationed in Germany. According to his service personnel records, the only other time that the Veteran was stationed in Georgia was from August 1973 to about February 1974. While this may suggest that the record was created during his period of honorable service, further details in the record show that this record reflecting depressive neurosis could not have been prepared during the 1973-1974 time period. This is so because the record in question also notes that the Veteran was status post hepatitis and kidney problems, and the possibility of hepatitis is first mentioned in August and September 1975 and June 1976. Lastly, the Veteran denied having or having had psychiatric symptomatology at the time of a service examination in March 1976, during his honorable period of service, and then afterwards, at the time of a separation examination in early 1977, during his other than honorable period of service, reported that he had or had had frequent trouble sleeping and depression or excessive worry. For these reasons, the preponderance of the evidence is against a finding that this record of psychiatric symptomatology and treatment was not prepared during his honorable service. The preponderance of the evidence is therefore against a finding that the Veteran’s current psychiatric disorder was manifest during his honorable period of service, or that a psychosis was manifest within the first post-service year or that his current psychiatric disorder is otherwise related to service, based on a review of the service treatment and personnel records and the totality of the evidence. In fact, no psychiatric disorder appears to have been manifest during his honorable period of service, based on the totality of the evidence of record. For all of the above reasons, the private psychologist’s medical opinion is accorded very little probative weight and the Board finds that it is outweighed by the rest of the evidence including the opinion of the VA examiner in March 2017. It is important to note that in a service connection claim, the question is whether current psychiatric disease is related to honorable service, and in this case, the preponderance of the evidence including the March 2017 VA examination report which notes no impaired judgment, persistent delusions or hallucinations, or grossly inappropriate behavior, is incongruous with a diagnosis of a psychosis, but instead is indicative of depressive neurosis related to present day problems, rather than to the Veteran's honorable service, during which time no psychiatric symptomatology is shown. The diagnosis rendered in March 2017, of major depressive disorder, is the most sound one in the record as it pertains to the character of the Veteran's current psychiatric disease. Psychosis is all but ruled out by the absence of its symptoms at the time of the VA examination in March 2017, and while the private psychologist indicated obliquely and without any significant explanation in July 2018 that the Veteran does not have a depressive disorder, there is no indication that the private psychologist actually considered whether the diagnostic criteria for a diagnosis of depressive disorder were met. Given all of the above, the Board concludes that the main question before it is essentially whether the Veteran's current depressive disorder was manifest in or is related to honorable service. The preponderance of the evidence indicates that this is not the case. Moreover, there is no competent evidence indicating that any of the Veteran's service-connected disabilities (involving the left upper extremity, face and scalp skin, and tinnitus) are causing/aggravating his psychiatric disability, and the Veteran is not a reliable historian. The Veteran has asserted a number of service-related causes and secondary service connection causes for his claimed psychiatric disorder, including in March 2017, when he reported that shooting left-handed in service started his psychiatric disorder. However, as a layperson, he is not competent to opine on the complex matter of relationship to service of a psychiatric disorder. Medical expertise is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that service connection is not warranted for psychiatric disability. 3. Service connection for vision impairment Based on the evidence of record, the Board concludes that service connection is not warranted for a vision disorder, as the preponderance of the evidence indicates that no disease or injury causing vision impairment was manifest in service. Service treatment records are silent for reference to disease or injury causing vision problems. At the time of a January 1977 service discharge examination (this for his period of service which was other than honorable), he reported blurred vision after constant use of his eyes, and that blurring worsened with misty fog. He reported that he had previously worn glasses, but was told that he no longer needed them. Examination showed his uncorrected distant and near vision was 20/20. A service examination from January 1977 (during the other than honorable period of service) showed normal vision. A January 2002 VA examination report showed his eyes to be normal. In June 2003, the Veteran reported that he had experienced snow blindness and sensitive eye and that due to the glare from intense sunlight, his vision had been distorted from release date from active duty. He also reported dry and itchy eyes. In October 2000, the Veteran reported that his vision seemed to be impaired. On VA examination in March 2017, after the January 2017 Board remand ordering the same, the examiner noted that the Veteran had no visual impairment on service discharge examination. Instead, his visual acuity was 20/20 on that examination. The examiner indicated that the Veteran now has myopia, refractive error, and age-related cataracts. (Glaucoma suspect was reported in May 2014.) The VA examiner's message was to the effect that the Veteran developed myopia and mild cataracts after service, and that both of these are unrelated to any event, disease, or trauma experienced in service. The examiner stated that the Veteran now has only mild age-related cataracts and no other ocular pathology. The preponderance of the evidence indicates that the Veteran's current cataracts are related to aging. They were not shown in service or until years post-service, and the VA examiner in March 2017 characterized them as related to the Veteran's aging. Recent records note diagnoses of dry eye syndrome. However, this was not manifest in service and there is no competent evidence that it is related to service either. Instead, the first mention of dry eyes was in June 2003 and the Veteran indicated at the time of the March 2017 VA examination that it began in 2015. The VA examiner at the time also indicated that there was no decrease in visual acuity or visual impairment due to it, and visual impairment is what has been claimed. The Veteran indicated in November 2017 that he has intermittent vision problems that have been going on since service. However, the preponderance of the evidence indicates that no vision disease or injury which he has currently was manifest in service or is related to service. Additionally, no eye disease or injury appears to have occurred in service. His myopia and refractive error thus would appear to be not diseases or injuries within the meaning of applicable VA compensation law. Accordingly, service connection is not warranted for a vision disorder. In March 2017, the Veteran requested that a service accident report be discovered for adjudicative purposes. He reported that while in training in Germany, he fell asleep, an alert was issued, and as he prepared to engage in a combat readiness position, he could not see well due to his vision at the time. Instead of remanding, his statement will be accepted. However, even if we accept his statement as to the substance of the claimed events, that does not change the outcome of the decision. It remains that no in-service eye disease or injury is shown. The Board has also considered all of the Veteran's statements concerning the cause of vision problems, including a statement from him that his vision in service may have been distorted by contrast sensitivity; and his April 2014 statement that he experienced blurred vision episodes upon discharge, and that it is more likely that this was the same cause on exit from service, or that it could have been caused by Lyme disease from bug bites or by one of the many in-service events which occurred. However, the Veteran is not competent to indicate that any visual disease or injury disorder he has now was manifest in or related to service, see Jandreau, and the preponderance of the evidence indicates that it was not. The preponderance of the evidence is against the claims and there is no doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). However, the Board would like to thank the Veteran for honorably serving his country from May 1973 to April 1976.   REMANDED The matter of entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran has appealed for a TDIU. According to the record, including a June 2001 VA Form 21-8940, he has 2 years of college education and training to drive a tractor trailer, as well as training in electrical construction, and work experience in those 2 fields. The record reflects that currently, the Veteran's combined service-connected rating is only 20 percent, based on 10 percent for a left forearm fracture with carpal tunnel syndrome; and 10 percent for tinnitus. However, there are other matters currently pending which could assist his TDIU claim if they end up being granted, and in July 2012, the Veteran tied his TDIU claim to disabilities that have not been granted service connection yet. He has filed a notice of disagreement contesting the RO's denial of a rating in excess of 10 percent for his service-connected seborrheic dermatitis of the face and scalp from April 2000 to September 10, 2001 and from October 10, 2001. Additionally, he might still perfect appeals concerning entitlement to a rating in excess of 10 percent for tinnitus, and service connection for bilateral hearing loss disability, with the statement of the case on those matters being issued on January 11, 2018. Under these circumstances, the Board finds that the matter of entitlement to a TDIU should be remanded to the RO for further development, as indicated below.   The matters are REMANDED for the following action: The RO should again consider the Veteran's claim for a TDIU, including in light of any additional evidence added to the record given the Veteran’s intertwined pending claims. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lawson, Counsel