Citation Nr: 1807617 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-15 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety not otherwise specified (NOS), and depression NOS. 2. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. 3. Entitlement to service connection for an upper extremity disorder, to include as secondary to diabetes mellitus. 4. Entitlement to service connection for a lower extremity disorder, to include as secondary to diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2011 and November 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the September 2011 rating decision denied service connection for PTSD. A review of the record indicates that the Veteran has been diagnosed with anxiety and depression. Accordingly, the Board has recharacterized the Veteran's claim more broadly as service connection for a psychiatric disorder, to include PTSD, anxiety NOS, and depression NOS. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board also notes that the Veteran filed claims in regard to skin disorder of the hands, bilateral legs, and bilateral feet. These claims have been combined into one claim of service connection for a skin disorder. The Veteran had a Board hearing in October 2016. At the hearing, additional evidence was received with a waiver of RO consideration. See 38 C.F.R. § 20.1304(c). The record was also held open for a period of 90 days during which additional evidence was submitted by the Veteran's representative. In addition, waiver of RO consideration of the additional evidence is presumed given the date of the Veteran's substantive appeal. See 38 U.S.C. § 7105(e). The decision below addresses the issue of entitlement to service connection for a psychiatric disorder. The remaining issues are addressed in the remand section following the decision. FINDINGS OF FACT 1. The Veteran has not been diagnosed with PTSD. 2. The Veteran's psychiatric disorders of anxiety NOS and depression NOS are due to military service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD 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 service connection for anxiety NOS and depression NOS have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In regard to service connection for PTSD, such claims require medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis The Veteran contends that he has PTSD due to stressful incidents he experienced during service. His DD 214 and DD 215 reflect that he was awarded the Bronze Star Medal while serving as a Field Radio Repairman in Vietnam. PTSD The Veteran was afforded a VA examination in regard to this claim in March 2011. During the examination, the Veteran reported an in-service incident of seeing enemy soldiers preparing to attack his location and feeling like he was going to be killed. He reported another incident when a convoy he was in was shelled by enemy soldiers. In addition, he stated that the airplane he was onboard to return to the United States from Vietnam was shot and he thought that it would be shot down on takeoff. The Veteran also reported experiencing occasional depressed feelings with suicidal thoughts. The examiner found that the Veteran does not meet the diagnostic criteria for PTSD. However, she did find that he has anxiety NOS and depression NOS. She concluded that these conditions are related to the Veteran's military service because they are triggered by memories of his military experiences. The Board finds that service connection for PTSD is not warranted because the record does not show that Veteran has been diagnosed with PTSD. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, the March 2011 VA examiner did not find the Veteran met the diagnostic criteria for PTSD, which is persuasive. In addition, the other medical evidence of record does not show that the Veteran has been diagnosed or assessed with PTSD. Although the Veteran specifically listed PTSD as the claimed disorder in his July 2010 claim, PTSD is not a condition which can be diagnosed by a lay person. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Accordingly, the preponderance of the evidence is against the Veteran's claim of service connection for PTSD. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for PTSD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Furthermore, although the Board is remanding other issues for further development, remand is not necessary for the Veteran's PTSD claim as there is no reasonable possibility that further assistance would further substantiate this claim. See 38 C.F.R. § 3.159(d). Anxiety and Depression However, the Board also finds that the evidence of record establishes a different outcome for anxiety NOS and depression NOS. In this regard, the same VA psychologist found that the Veteran has such conditions and that they are related to his military service. There is no medical opinion evidence contradicting such finding. In consideration of this evidence, the Board finds that the Veteran's psychiatric disorders of anxiety NOS and depression NOS are due to military service. This particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for the psychiatric disorders anxiety NOS and depression NOS. ORDER Service connection for PTSD is denied. Service connection for anxiety NOS and depression NOS is granted. REMAND The Veteran contends that he has a skin disorder that affects his hands, bilateral legs, and bilateral feet due to his service. In this regard, in a March 2014 VA Form 9, the Veteran stated that he has a skin disorder due to herbicide exposure. Thereafter, during the October 2016 Board hearing, the Veteran reported experiencing itching and peeling of the skin of his hands, arms, and legs during service in January 1972. He stated that these outbreaks continued off and on throughout the remainder of his service. He also reported being treated at a VA facility in Crown Point, Indiana for a skin disorder after his discharge from service in 1974. The Veteran's service treatment records (STRs) contain treatment for an infection of his right hand assessed as cellulitis in January 1972. Shortly thereafter, during his separation examination in March 1972, he did not report experiencing any medical conditions. The Veteran's post-service treatment records reflect that he was treated for a rash "all over" his body in October 1998 that was assessed as "probable eczema, possible vasculitis" at such time. The Veteran was afforded a VA examination in regard to this claim in October 2011. The examiner noted a diagnosis of cellulitis of the hand in January 1972 and a diagnosis of nummular eczema in November 1998. She noted that the Veteran has eczema of the right hand, but found that it was less likely than not incurred in or caused by an in-service injury, event, or illness. She explained that the etiology of the condition was unknown and that his in-service infection could have been to either his right or left hand. However, based on the RO's directives, the examiner limited her findings to skin disorders of the Veteran's right hand. In addition, she did not provide an opinion as to a possible relationship between the Veteran's skin disorder and herbicide exposure as the Veteran had not asserted such a relationship at the time of the examination. Thereafter, the Veteran submitted a letter from a private physician in November 2016. The physician stated that the Veteran has chronic dermatitis on his hands, arms, and legs. He also stated that such condition "could be from exposure to" herbicide. However, this opinion is not definite enough to establish service connection as it is speculative. Therefore, another examination is required to address the nature and etiology of the Veteran's skin disorder that encompasses all aspects of the claim. The Veteran is also seeking service connection for disorders of the bilateral upper extremities and bilateral lower extremities. In this regard, in a July 2010 claim form, the Veteran reported experiencing numbness in his hands, arms, legs, and feet. Thereafter, in a March 2014 VA Form 9, the Veteran stated that his upper and lower extremity conditions were caused by his service-connected diabetes mellitus. Then, during the October 2016 Board hearing, the Veteran's representative indicated that additional medical evidence would be submitted in regard to this claim. While the Board held the record open for 90 days following the hearing for submission of such evidence, none was submitted in regard to the Veteran's upper extremity or lower extremity claims. The Veteran was afforded a VA examination in regard to his upper and lower extremity claims in April 2011. The examiner noted onset of numbness of the Veteran's extremities in 1990 and diabetes in 2006. She reported that electrodiagnostic studies of the bilateral upper and lower extremities showed that the Veteran has moderate, bilateral media neuropathy at the wrist. She did not find evidence of generalized peripheral polyneuropathy. The examiner concluded that the Veteran's upper and lower extremity numbness and median nerve neuropathy is not related to diabetes. However, she did not offer findings as to whether such conditions are aggravated by the Veteran's diabetes. Therefore, another examination is required to address the nature and etiology of the Veteran's upper and lower extremity disorders that encompasses all aspects of these claims. In addition, the Veteran has reported being treated for a skin disorder at a Crown Point, Indiana VA treatment facility shortly after his discharge. However, as such records have not been associated with the file, they should be obtained on remand. Accordingly, these claims are REMANDED for the following actions: 1. Obtain all the Veteran's records of treatment at a Crown Point, Indiana VA facility from March 1972 to the present. As these potential records predate VA's electronic treatment record system, a search should be made in non-digital, archived/retired records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made, why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the records development indicated above, schedule the Veteran for an appropriate VA examination to address the nature and etiology of all skin disorders present since July 2010. The entire claims file should be reviewed by the examiner, to include the November 2016 private physician's statement regarding the Veteran's skin disorder and herbicide exposure. After examining the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that each disorder had its onset during, or is otherwise related to his service, to include as due to herbicide exposure. A detailed rationale for all opinions offered should be provided. 3. Also, schedule the Veteran for an appropriate VA examination to address the nature and etiology of all upper and lower extremity disorders present since July 2010. The entire claims file should be reviewed by the examiner. After examining the Veteran, the examiner should identify the current disorders of the upper and lower extremities. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that each disorder is caused or aggravated by the Veteran's service-connected diabetes mellitus. The term "aggravation" means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. A detailed rationale for all opinions offered should be provided. 4. Finally, readjudicate the claims remaining on appeal. If all benefits sought are not granted, furnish the Veteran an appropriate supplemental statement of the case (SSOC). Thereafter, if indicated, the claims should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs