Citation Nr: 18122194 Decision Date: 07/27/18 Archive Date: 07/27/18 DOCKET NO. 14-15 264A DATE: July 27, 2018 REMANDED Entitlement to service connection for infectious hepatitis, to include hepatitis C (hepatitis) is remanded. Entitlement to service connection for chronic otitis is remanded. Entitlement to service connection for a skin condition, excluding lichen planus, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to January 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for hepatitis and chronic otitis and denied the claim to reopen the issue of entitlement to service connection for a skin disability. In July 2016, the Board, in pertinent part, reopened the previously denied claim of entitlement to service connection for a skin disability and remanded the claim on the merits along with the service connection claims for hepatitis and chronic otitis for further evidentiary development. In June 2017, a Decision Review Officer (DRO) granted service connection for gastroesophageal reflux disease (GERD) and assigned a 10 percent rating, effective October 22, 2002, which was previously on appeal after being denied by the RO’s August 2003 rating decision. See Board’s July 2016 decision and remand (which found that the Veteran filed a timely notice of disagreement with the August 2003 rating decision.) As the Veteran has not appealed either the evaluation or effective date assigned to this disability, this matter is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Notably, with respect to the service connection claim for a skin disability, in October 2017, the RO granted service connection for lichen planus, previously characterized as a skin disability, and assigned a noncompensable rating, effective May 13, 2009, which was previously on appeal after being denied by the RO’s May 2011 rating decision. In the appellant’s July 2018 brief, the Veteran’s representative listed the issue on appeal as entitlement to service for a skin disability, excluding lichen planus. Therefore, in light of the Veteran’s contentions and the evidence of record, the issue has been recharacterized to include other skin disabilities than lichen planus, in accordance with Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). This appeal has been advanced on the Board’s docket. U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). 1. Entitlement to service connection for hepatitis is remanded. The Veteran claims that he contracted hepatitis in service while laundering a blood-stained uniformed or getting a tattoo. See Veteran’s statement dated February 2011 and VA examination report dated August 2016. Post service treatment records (STRs) show that the Veteran was diagnosed with hepatitis C in 1996 and hepatitis B in April 1999. See VA general medical examination report dated October 1999 and VA treatment record dated January 2017. VA recognizes risk factors for contracting hepatitis C that include: transfusions of blood or blood products before 1992, hemodialysis, accidental exposure to blood, intravenous or intranasal cocaine use, high risk sexual activity, and other direct percutaneous (through the skin) exposure to blood such as tattooing, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or shaving razors. See VA Training Letter 01-02 (April 17, 2001). Pursuant to the Board’s July 2016 remand, a VA examination and opinions were obtained to determine the etiology of the Veteran’s hepatitis. In an August 2016 examination report, the examiner opined that the Veteran’s hepatitis C is less likely than not due to his military service. The examiner reasoned that post service the Veteran was exposed to risk factors for contracting hepatitis C such as, intravenous drug abuse and sexual activity. In a September 2017 addendum opinion, the physician opined that the Veteran’s the hepatitis c is less likely than not related to his military service. The physician reasoned that there is no medical literature that supports that handling bloody uniforms are a risk factors for contracting hepatitis C. The physician also cited to a medical article that discusses known exposures to hepatitis C and stated that There are no conclusive data to show that persons with a history of exposures such as intranasal cocaine use, tattooing or body piercing are at an increased risk for HCV infection based on these exposures solely. It is believed, however, that these are potential modes of HCV acquisition in the absence of adequate sterilization techniques. See addendum opinion dated September 2017. The August 2016 and September 2017 opinions are flawed. With respect to the August 2016 opinion, the physician did not provide an explantation how the Veteran’s in-service risk factors for contracting hepatitis C would be a lesser consequence than the post-service risk factors for contracting hepatitis C. As to the September 2017 opinion, the physician disregarded the Veteran’s reported in-service exposure to handling bloody uniforms as a possible risk factors for contracting hepatitis C. However, VA recognizes risk factors for contracting hepatitis C to include accidental exposure to blood. Lastly neither physician provided an opinion as to the Veteran’s diagnosed hepatitis B. Notably, in the appellant’s July 2018 brief, the Veteran’s representative requested a new VA examination to determine the etiology the Veteran’s hepatitis. Therefore, in light of the flawed opinions and the request for a new VA examination, the Board will remand the claim to obtain a new opinion on this question. Given the multiple examinations and additional evidence in the claims file, another VA examination does not appear to be necessary, but the physician should be given an opportunity to request that one be conducted. 2. Entitlement to service connection for chronic otitis is remanded. The Veteran claims that his chronic otitis is due to his Vietnam military service. Current VA treatment records reveal a diagnosis of otitis media. See, e.g., VA treatment records dated in April 2010 and August 2012. Pursuant to the Board’s July 2016 remand, a VA examination and opinions were obtained to determine the etiology of the Veteran’s otitis media. In a January 2017 addendum opinion, the physician opined that the Veteran’s otitis media is less likely than not due to his military service, as there was no evidence of otitis condition noted in STRs. In an August 2017 addendum opinion, the physician provided a negative opinion between the Veteran’s otitis media and his military service. The physician reasoned that the Veteran’s symptoms are consistent with his non-service connected tinnitus. Further, the examiner indicated that the Veteran has current hearing loss and otitis media is expected with bilateral hearing loss. The physician also indicated the Veteran did not have a current chronic ear disease. In a September 2017 addendum opinion, the physician opined that the Veteran’s otitis media is less likely than not related to his military service. The physician essentially reasoned by affording less weight to the Veteran’s statements versus his medical records. In sum, the VA opinions noted above are flawed. The January 2017 opinion provided no rationale other than indicating that there was no diagnosis of otitis during service. The August 2017 opinion was unclear and contradictory as to whether the Veteran has a current otitis media diagnosis. As to the September 2017 opinion, the September 2017 physician made a factual finding as to the Veteran’s statements, which is the Board’s responsibility. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board’s responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). Furthermore, in the appellant’s July 2018 brief, the Veteran’s representative requested a new VA examination to determine the etiology the Veteran’s otitis media. Therefore, in light of the flawed opinions and the request for a new VA examination, the Board will remand the claim to obtain a new opinion on this question. Given the multiple examinations and additional evidence in the claims file, another VA examination does not appear to be necessary, but the physician should be given an opportunity to request that one be conducted. 3. Entitlement to service connection for a skin condition, excluding lichen planus, is remanded. The Veteran seeks service connection for a skin condition, namely tinea cruris, which he asserts developed in and continued since service. The Veteran’s service records indicate that he served in the Republic of Vietnam. Thus, Agent Orange exposure is conceded based on the circumstances of the Veteran’s military service. See 38 U.S.C. § 1116(f). An April 1970 examination reports shows a diagnoses of mild tinea cruris. Post-service treatment records show diagnoses of psoriasis and dermatophytosis, but not tinea cruris. See, e.g., VA treatment records dated in May 2008 and October 2012; see also April 1970 VA examination report and VA treatment records dated 2002 noting a diagnosis of tinea cruris. Although the Veteran’s current skin diagnosed skin disabilities, psoriasis, and dermatophytosis, are not among the diseases presumed service connected in veterans who served in Vietnam, the Veteran is not precluded from establishing service connection for these disabilities based on the theory that they were actually caused by Agent Orange exposure. See 38 U.S.C.§ 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). Pursuant to the Board’s July 2016 remand, a VA examination and opinions were obtained to determine the etiology of the Veteran’s skin disability. In an August 2016 VA examination report, the examiner indicated that the Veteran had a diagnosis of tinea cruris in 1969 and then provided a negative nexus between the Veteran’s tinea cruris. The examiner reasoned that he was not diagnosed with tinea cruris during service. In September 2017, the Veteran was afforded a VA examination. The VA examiner opined that the Veteran’s skin disability is less likely than not due to his military service. The VA examiner reasoned that the there is no evidence dermatitis or tinea during service and then stated essentially reasoned by affording less weight to the Veteran’s statements versus his medical records. Furthermore, in the appellant’s July 2018 brief, the Veteran’s representative requested a new VA examination to determine the etiology the Veteran’s skin disability, namely because the opinions of record did not consider the Veteran’s lay statements of continuity of symptomatology since service. In sum, the August 2016 and September 2017 opinions are flawed. To this extent, the August 2016 opinion is unclear as to whether the Veteran has a current diagnosis of tinea cruris, as the examiner indicated that the Veteran had a diagnosis in 1969, but then provided an etiology opinion between the Veteran’s tinea cruris and service. With respect to the September 2017 opinion, the examiner failed to consider the Veteran’s reports of skin symptoms since service. Therefore, in light of the flawed opinions and the request for a new VA examination, the Board will remand the claim to obtain a new opinion on this question. Given the multiple examinations and additional evidence in the claims file, another VA examination does not appear to be necessary, but the physician should be given an opportunity to request that one be conducted. The matters are REMANDED for the following action: 1. Request an opinion from an appropriate physician such as gastroenterologist or a hepatologist to determine the etiology of the Veteran’s hepatitis C and hepatitis B. If the physician finds that a new examination is necessary, one should be conducted. The entire claims file, including a copy of this remand, must be made available to the physician, and the physician should confirm that such records were reviewed. The physician should opinion whether it is as least as likely as not (50 percent probability or more) that the Veteran’s hepatitis C and hepatitis B had its onset in service or is otherwise related to service, to include as due to his presumed exposure to an herbicide agent (Agent Orange) in the Republic of Vietnam. In answering this question, the physician must address the Veteran’s contentions that he was at risk of contracting hepatitis C and hepatitis B from handling bloody service uniforms or receiving a tattoo during service. Additionally, the examiner must consider VA Training Letter 01-02 (April 17, 2001). The physician is advised that the Veteran is competent to report his symptoms and history. The examiner must provide a reason for any opinion given. 2. Request an opinion from an appropriate physician such as an otolaryngologist, to determine the etiology of the Veteran’s otitis media. If the physician finds that a new examination is necessary, one should be conducted. The entire claims file, including a copy of this remand, must be made available to the physician, and the physician should confirm that such records were reviewed. The physician should opine whether it is as least as likely as not (50 percent probability or more) that the Veteran’s otitis media had its onset in service is otherwise related to service, to include as due to his presumed exposure to an herbicide agent (Agent Orange) in the Republic of Vietnam. The physician is advised that the Veteran is competent to report his symptoms and history. The physician must provide a reason for any opinion given. 3. Request an opinion from a dermatologist to determine the etiology of the Veteran’s skin disability, other than lichen planus. If the physician finds that a new examination is necessary, one should be conducted. The entire claims file, including a copy of this remand, must be made available to the physician, and the physician should confirm that such records were reviewed. The physician should identify all skin disabilities, to include to include psoriasis and dermatophytosis and excluding lichen planus, since approximately the date of the Veteran’s claim in May 2009. Then, the physician should offer an opinion as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s skin disability, excluding lichen planus, had its onset in service is otherwise related to service, to include as due to his presumed exposure to an herbicide agent (Agent Orange) in the Republic of Vietnam. In addressing the above, the physician must address the Veteran’s contentions that he developed a skin condition on his groin and neck area, and that this skin disability has continued since service. The physician is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinion. The physician must provide a reason for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel