Citation Nr: 1826201 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 14-28 393A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin condition, to include seborrheic dermatitis due to toxic herbicide exposure. REPRESENTATION Appellant represented by: Stacey Clark, Attorney ATTORNEY FOR THE BOARD E. Vample, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter previously came before the Board in August 2016, at which time it was remanded for further development. After further development this matter is ready for adjudication. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. A psychiatric disability other than PTSD is not shown in service or for many years thereafter, and is not shown by competent evidence of record to be related to service. 3. Seborrheic dermatitis was not shown in service and is not otherwise related to the Veteran's active service, to include as due to toxic herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, claimed as PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309 (2017). 2. The criteria for service connection for other psychiatric disorders other than PTSD have not been met. 38 U.S.C. 1110, 1131, 5103(a) (2012); 38 C.F.R. 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 3. Seborrheic dermatitis was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and VA examinations are associated with the claims file. The Board notes that this appeal was remanded in August 2016 in order to afford the Veteran a new VA examination that provides an opinion on whether the Veteran meets the DSM-V criteria for a diagnosis of PTSD and any related psychiatric disorder and to determine the nature and etiology of his skin disorder. The Veteran was scheduled for a VA examination in August 2017 and an opinion was provided. Therefore, the Board is now satisfied that there has been substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253(1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), 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. As set forth in the DSM-IV, a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of herself or others, and (2) the person's response involved intense fear, helplessness, or horror. Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 CFR § 3.307(a)(6). In this case, the Veteran's service record reflects his service in the Republic of Vietnam during the Vietnam Era. Thus, his exposure is presumed. Id. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.309(e), presumptive service connection based on Agent Orange exposure is available for the following diseases: AL amyloidosis; chloracne, or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemia's (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma- Parkinson's disease; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341, 346 (1994), 61 Fed. Reg. 41,442, 41,449 and 57, 586, 57, 589 (1996), and 67 Fed. Reg. 42,600, 42, 608 (2002). PTSD In this case, the Board determines that service connection for PTSD is not warranted, as he does not have a current diagnosis of this disorder. Specifically, the treatment records from the Gainesville VA in January 2006 and March 2008 show that the Veteran's screening for PTSD was negative. Additionally, during a medical examination in April 2011, the Veteran denied PTSD. In July 2012, a VA examiner determined that the criteria for PTSD that conforms to DSM-IV criteria had not been met, instead diagnosing the Veteran with anxiety disorder. The examiner opined that the Veteran's diagnosis of anxiety disorder was less likely as not caused by or a result of his conceded stressor of fear of hostile military or terrorist activity. In support of his opinion, the examiner noted that the Veteran had minimal symptoms reported toward a PTSD diagnosis and many of his endorsed symptoms were specifically related to stressful events during his time working as a law enforcement officer. Furthermore, a mental health diagnostic study performed at the Gainesville VA in December 2014 revealed that the Veteran's PTSD screening was negative. The Veteran underwent a new VA examination in August 2017 in which the examiner concluded that the Veteran did not have a PTSD diagnosis that conformed to the DSM-5 criteria. The examiner noted that he was unable to determine whether the Veteran met the criteria for another DSM-5 mental disorder because the Veteran was not cooperative. He further noted that the Veteran's responses to testing were suggestive of significant over-reporting of symptoms and he endorsed a number of symptoms and impairment that were highly atypical of individuals who have a genuine psychiatric or cognitive disorder. In determining that the Veteran does not have a current diagnosis of PTSD, the Board takes note of the holding by the United States Court of Appeals for Veterans Claims in McClain v. Nicholson, 21 Vet. App. 319 (2007), where it stated that a disorder need only be manifest at some point during the pendency of that claim, even if no disability is present at the time of the claim adjudication. However, McClain is not applicable here, as this is not a situation where the Veteran had a legitimate prior diagnosis that has since resolved. Here, the Board has determined that the weight of the clinical evidence is against the conclusion that he had ever been diagnosed with a disorder other than anxiety and depression. As service connection is not for application unless the evidence indicates that a current disability exists, service connection is not warranted for PTSD. See 38 U.S.C.§ 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Other Psychiatric Disorders The Board has also considered whether service connection is warranted for any of the Veteran's other diagnosed psychiatric disorders, but concludes that service connection is again not warranted. The Veteran's medical treatment records reveal that he has suffered from recurrent episodes of major depression since December 1992. A February 2000 examination revealed that the Veteran continued to have a lot of problems and was doing poorly with severe anxiety and depression. During an October 2002 depression screening, the examiner noted that the Veteran has not had two consecutive weeks during which he has felt sad, blue, or depressed. Additionally the Veteran had not experienced two years or more in life feeling depressed or sad most days. Furthermore, an examination in July 2010 revealed that the Veteran's depressive disorder was stable. Service connection may be presumed for certain chronic diseases, including psychosis, which develop to a comprehensible degree within one year after discharge from service, even though there is no evidence of the disease during active service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). However, the Veteran's psychiatric disabilities are not considered psychosis and depression is not considered a chronic disease. See Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013); 38 C.F.R. 3.384 (2017). In this case, service connection is also not warranted for an acquired psychiatric disorder other than PTSD. The Veteran's service treatment records do not reflect treatment for an acquired psychiatric disorder in service. Notably, no psychiatric symptoms were observed at his separation examination in 1972. In fact, the earliest indication of a psychiatric disorder was not until 20 years later. Therefore, continuous symptoms since service have not been shown on a clinical basis. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his acquired psychiatric disability to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, the Board acknowledges that the Veteran is competent to testify about any psychiatric symptoms he experienced in service despite his status as a lay person. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran is not competent to provide testimony regarding the etiology of an acquired psychiatric disability. See Jandreau, 492 F.3d at 1377, n.4. Because acquired psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's acquired psychiatric disorder are found to lack competency. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed acquired psychiatric disability to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Skin Disorder The Veteran contends that he has seborrheic dermatitis due to in-service exposure to toxic herbicides during his service in Vietnam. As an initial matter, the Board determines that service connection is not warranted on a presumptive basis, as he does not have a disorder that is presumptively related to toxic herbicide exposure under 38 C.F.R. § 3.309. Specifically, seborrheic dermatitis and basal squamous cell carcinoma are not disorders that are related to toxic herbicide exposure. The Veteran's service treatment records (STRs) include treatment for dandruff in March 1971, however they are silent for an signs, symptoms, or complaints of seborrheic dermatitis. Specifically, the Veteran's January 1972 separation examination noted excellent health and no skin diseases. Post-service treatment records show complaints of flakiness and redness in the area of the eyebrows, ears, scalp, and nasolabial area during an examination in July 2009. However medical records do not reflect a diagnosis of seborrheic dermatitis and basosquamous cell carcinoma of the right helix until 2011. Next, service connection may also be granted when the evidence establishes a medical nexus between the Veteran's claimed disabilities and either his active duty or toxic herbicide exposure. In this case, the Board finds that the weight of the competent evidence is against such a nexus. During his July 2012 VA examination, the Veteran reported that he experienced skin peeling, bumps, and rash like lesions about two years after separation from active duty. The examiner noted that the Veteran suffered from dandruff while on active duty which has since been resolved. In regard to the Veteran's seborrheic dermatitis, the examiner opined that it is less likely as not incurred/caused by complaints that occurred during active duty service based on medical records, medical literature, and clinical experience. Additionally, the examiner noted that the Veteran's service treatment records were silent for any skin conditions except dandruff and no objective evidence of seborrheic dermatitis condition was shown during or within one year of separation from active duty. The Veteran reported that he had seborrheic dermatitis when he went to the VA the first time in 1973, but did not remember his diagnosis. Additionally, he reported that he underwent Mohs surgery in February 2012 for basosquamous cell cancer on his ear. The August 2017 VA examiner opined that it was less likely than not that the Veteran's skin condition was related to service to include exposure to Agent Orange in Vietnam. In support of his opinion, the examiner noted that there is no actual diagnosis of seborrheic dermatitis in service and his diagnosis was not more specific than dandruff. The examiner stated that had dandruff been a result of seborrheic dermatitis, then it would have responded to Tegrin and Head and Shoulders shampoos and since it did not, a diagnosis is in question. In addition, the examiner noted that four subsequent physical examinations were silent for any skin abnormality or skin diagnosis. In regard to the Veteran's diagnosed Basosquamous cell cancer, the examiner opined that it was not due to service to include Agent Orange exposure as there is an absence of any skin cancer during service or within 2 years of discharge from service. In reaching this conclusion, the Board has carefully considered the Veteran's lay assertions. The Board acknowledges that, as a lay witness, the Veteran is competent to report his medical history and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-79(1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). Nevertheless, determining the potential cause of dermatitis is beyond the scope of lay observation. Id. Thus, a determination as to the etiology of the Veteran's dermatitis is not subject to lay opinion and requires specialized training. See Jandreau supra; Layno, 6 Vet. App. at 469-70. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a psychiatric disorder, to include PTSD, is denied. Entitlement to service connection for a skin condition, to include seborrheic dermatitis due to toxic herbicide exposure, is denied. ____________________________________________ DAVID GRATZ Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs