Citation Nr: 20067775 Decision Date: 10/20/20 Archive Date: 10/20/20 DOCKET NO. 12-25 567 DATE: October 20, 2020 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, including anxiety, depression, and dysthymic disorder, is denied. Entitlement to service connection for tinea manus, to include as due to exposure to an herbicide agent, is denied. FINDINGS OF FACT 1. The Veteran's claimed stressors have not been verified in the record, and the more persuasive medical evidence does not support a diagnosis of PTSD. 2. An acquired psychiatric disorder was not evident during service or until many years thereafter, and there is no competent evidence suggesting it is related to any in-service event. 3. There is no competent evidence indicating the Veteran’s current skin condition, tinea manus, is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, or anxiety and depression and dysthymic disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.655. 2. The criteria for service connection for a skin condition on the hands, claimed as due to Agent Orange exposure (diagnosed as tinea manus), have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to April 1971, including service in the Republic of Vietnam. As an initial matter, the Veteran was recently sent a letter from the Board indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. However, this letter was sent in error. Upon further review, he does not have a pending hearing request, as he testified before the undersigned Veterans Law Judge in July 2013. Although his case has been remanded and he could request a second Board hearing, he has not done so. Therefore, the Board will proceed to consider his appeal. By way of history, in January 2015, the Veteran’s service connection claims for a skin condition, PTSD, and an acquired psychiatric disorder other than PTSD, were reopened and were remanded for further development. Unfortunately, in March 2019, the Board found another remand was necessary for development of evidence relevant to the claims on appeal. The 2019 remand directives included obtaining updated VA medical records since 2014; requesting the Veteran provide information in order to corroborate his claimed stressors related to combat; and scheduling VA examinations. Although the Board finds that the 2019 remand directives were not fulfilled, that was at no fault of the RO. First, the RO requested VA medical records, and received notice that the Veteran never returned to a VA medical center after July 2014, that he was “removed from panel due to inactivity” and that there has been no treatment since. As such, the only VA medical records are what is already in his file. Next, the Veteran was sent post-remand development letters in October and December 2019 requesting information regarding his claimed stressors from service in order to corroborate those events to assist him with his PTSD claim. Although the Veteran’s attorney sent a response in January 2020 acknowledging receipt of the letters and VA Form 21-0781, and stated the form would be returned when the attorney received the form from the Veteran; to date, no VA Form 21-0781 has been received. As discussed in Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), “[t]he duty to assist is not always a one-way street” and if the Veteran desires help with his claims, he must cooperate with VA’s efforts to assist him. Further, the RO scheduled the Veteran for VA examinations, but in January 2020, it was reported that he was a “no show” to both, and this was acknowledged and discussed in the July 2020 supplemental statement of the case (SSOC). There have been no statements from the Veteran since the SSOC explaining his failure to attend the examinations or requesting they be rescheduled. He also previously failed to report for a psychiatric examination scheduled in 2016. Pursuant to 38 C.F.R. § 3.655(a), individuals for whom an examination has been scheduled are required to report for the examination. In addition, 38 C.F.R. § 3.655(a) provides, in part: When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with §3.655(b) or (c) as appropriate. The provisions of 38 C.F.R. § 3.655(b) address the Board’s duty when a claimant has failed to report to a VA examination without good cause: When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Turk v. Peake, 21 Vet. App. 565 (2008). See below discussions. Other than as immediately discussed, there were no other issues with the duty to notify or duty to assist in obtaining documentary evidence. 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). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, Veterans who served in the Republic of Vietnam during the period starting on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307. Service incurrence for certain diseases will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicide agents. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, at 53. 1. PTSD / Psychiatric Disorders In addition to the elements for service connection stated above, with respect to PTSD in particular, the regulations provide: “Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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.” See 38 C.F.R. § 3.304(f); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). The Veteran contends that he has an acquired psych disorder, to include PTSD, anxiety, depression, and dysthymic disorder, caused by his combat service when serving in Vietnam. However, for service connection to be warranted, a current psychiatric disorder must be found to relate back to such incidents, or other incidents of service. Here, first, the Veteran’s service treatment records (STRs) reveal no complaints, treatment, or diagnosis pertinent to an acquired psychiatric disorder. At service separation in 1971, the Veteran reported that he had no history of, or current depression, excessive worry, or nervous trouble of any sort. When examined at service separation, the Veteran was found to be psychiatrically normal. Further, in an April 1971 statement of medical condition prior to separation, the Veteran marked that “there has been no change in my medical condition.” Next, as noted above, the Veteran failed to report to scheduled VA examinations in January 2020. The record reflects that VA also discussed this failure to report in the July 2020 SSOC, but there has been no request to reschedule or statement showing good cause for not reporting. As such, the claim for service connection must be evaluated based on the evidence of record. See 38 C.F.R. § 3.655(b); see also Turk, 21 Vet. App. 565. After service, there is no record of treatment for psychiatric issues for several decades. Significantly, there is no confirmed manifestation of a mental illness to a degree of 10 percent or more within one year of service separation. In a July 1997 private medical letter, it was noted that the Veteran had a “medical history of no significant problems” but was diagnosed with an infected cyst on left wrist.” There was nothing related to PTSD or mental health. The first indication for PTSD was in March 1998, but it was not until January 2000 that there was a provisional diagnosis for PTSD; however, this is not a valid diagnosis as it was done by a physician’s assistant and not a mental health specialist. It was also noted during an annual examination in December 2006 that the Veteran did not report any PTSD-related symptoms and he had no complaints in sequela of service, but that he wanted an evaluation to support a disability claim. He was scheduled for an evaluation in June 2004, but he was a no-show. In July 2007, his former diagnosis for PTSD was indicated, but the doctor noted the examiner from 2000 who entered this diagnosis did not suggest why this diagnosis was made and the Veteran had not previously mentioned any PTSD-related symptoms during his prior visits with this doctor. However, he was applying for total, permanent disability with both VA and Social Security based on PTSD and he wanted an evaluation to support his disability claim. As such, in October 2007, he had an initial PTSD evaluation, but the examiner opined that he did not have a traumatic stressor to meet a diagnosis for PTSD, and noted that the Veteran had very little memory of his time in service and his descriptions were very vague and lacked detail. The examiner also noted that based on what the Veteran did report, he was not in a combat role but rather was in a relatively safe location. The examiner stated: “the Veteran could not remember many details of his time in Vietnam. He reported that he did use cannabis on a daily basis while in Vietnam which may have affected his memory for this period of time.” The examiner noted that the Veteran did not report any clear pattern of emotional detachment or numbing that could be tied to any alleged experiences in Vietnam. He also noted that the Veteran’s symptoms were exaggerated and that while he had some chronic mild depressive symptoms, they met the criteria for dysthymic disorder and not PTSD. During the evaluation, it was also noted that the Veteran had no personal history of psychological treatment, though beginning in 1998, he had been on clonazepam for sleep and anxiety, and beginning in the year 2000, he was prescribed sertraline; however, he had never seen a psychiatrist nor had a psychiatric hospitalization. In November 2007 during a follow up consultation, the doctor told the Veteran that there was a “confusing inconsistency between his self-report and his psychological test results” and the Veteran stated that he “agreed that he is not as ill as the tests portray” and that he wanted “an evaluation to support his disability claim.” In April 2010, it was noted that he had anxiety and depression, and possibly PTSD, and that he has a claim with VA for PTSD. In May 2011 and May 2012, a VA PTSD screen was negative. Further, in May 2012, he denied having depression or anxiety. See March 1998 to July 2014 VA medical records. The Veteran was afforded a VA examination in May 2010, and the VA examiner noted that the Veteran’s report of his duties while in Vietnam “are inconsistent with job duties that would typically be described by soldiers encountering combat situations.” The examiner considered all the alleged stressors in Vietnam the Veteran reported, but noted that he also had no Article 15s, no disciplinary actions, and he was honorably discharged under the highest rank. The examiner noted that during testing for PTSD, the Veteran scored well above the cut-off, which is considered “purposeful exaggeration or fabrication of symptoms.” The examiner opined that the Veteran’s test scores in totality were “consistently over-reported and inconsistent with his vague stressor experience and level of functioning since discharge.” The examiner opined that the Veteran did not present a valid stressor or show symptoms for a diagnosis of PTSD and noted that the stressors he reported during the examination were completely different than stressors reported during the October 2007 evaluation. The examiner therefore opined that the Veteran’s reported symptomatology are general and vague in nature, his symptoms were overreported, and testing did not support a diagnosis for PTSD. The examiner noted the Veteran has a longstanding chronic depressive symptomatology most reflective of dysthymic disorder and exacerbated by longstanding medication dependence. However, his dysthymic disorder was noted to be unrelated to military service and his alcohol abuse was in reported full and sustained remission. Additionally, during the 2010 examination, the Veteran reported that it was not until after 1985 that he began consuming alcohol every day and his attitude changed; but that prior to that, he had good work evaluations. He also stated he got divorced in 1988 due to his drinking but stopped drinking in 1991. However, the Board notes that in March 1998, the Veteran reported that he was married until 1985 when he then divorced after he cheated on his wife and his alcohol use became problematic. In August 2004, the Veteran was given a diagnosis for alcohol dependence, although he stated during the examination that he has not drank since 1991; then, in October 2005, he denied any lifetime use of alcohol. In November 2007, it was noted that he began drinking alcohol heavily in 1985 about the time of his divorce but reported that he stopped drinking in 1990. The private medical records showed that between September 2009 and December 2009, he had three evaluations with a “probable” diagnosis of PTSD from Dr. C.B. He also reported that he only smoked marijuana “occasionally” and “infrequently” and “smoked a little weed while in Vietnam” which contradicts his reports to VA that he smoked daily and that this affected his memory. In a September 2009 letter, another doctor, Dr. H.C., gave diagnoses of PTSD and major depressive disorder; but there were no specific stressors cited as a basis for the diagnoses, nor was there a nexus for the depression related to service but rather that the depression “is likely tied into the PTSD.” In December 2018, a third doctor, Dr. D.M., opined that the Veteran consistently reported service-related traumatic stressors, including that he was ambushed by Viet Cong after their vehicle was broken down and he was chased throughout the night and had to hide in the mud and a rice paddy. He stated that “it can be argued that [Veteran] does indeed meet [DSM-5] criteria for PTSD related to his active service” and “is at least as likely caused by the traumatic stressors related to his active service in Vietnam.” However, VA regulations state that if a veteran’s claimed stressor is related to fear of hostile military or terrorist activity and is adequate to support a diagnosis of PTSD, it must be confirmed by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. These private medical professionals are not VA examiners or VA contracted examiners and although they have provided a diagnosis of PTSD, the diagnosis is not adequate for rating purposes. See 38 C.F.R. § 3.304(f)(3). As such, the Board finds that there is no confirmed diagnosis of PTSD based on fear of hostile military activity. Further, as noted above, the RO ordered a VA examination to evaluate the claim and determine whether a diagnosis for PTSD is warranted. This might have provided evidence favorable to the claim. However, the Veteran failed to appear for the scheduled examination. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination, and where the claim is an original compensation (service connection) claim, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). Moreover, the Veteran’s reported stressors have been inconsistent and varied over time, and this seriously diminishes the probative value to be assigned to his statements concerning his military experiences. More than one VA mental health professional has questioned the veracity of his statements and noted his expressed desire of financial gain, which also diminishes the probative value to be assigned to his statements concerning his military experiences. Therefore, not only are the private diagnoses of PTSD inadequate to support a diagnosis based on fear of hostile military activity because they were not provided by VA (or VA contracted) mental health professionals, but they were based on statements by the Veteran as to the circumstances of his military service, which the Board expressly finds inconsistent and not credible. Accordingly, the Board finds that the Veteran does not have a persuasive diagnosis for PTSD. Additionally, there is no medical opinion that purports to relate a current acquired psychiatric disorder to service. The 2007 VA examiner, after examining the Veteran, specifically stated that his dysthymic disorder was unrelated to his military service. Finally, while the Board recognizes the Veteran’s assertions that his acquired psychiatric disorder is related to service and is competent to testify as to events that occurred in military service, the Veteran is not competent to conclude that any condition is connected to his service. Although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case, psychiatric disorders, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran’s statements of record cannot be accepted as competent evidence sufficient to establish service connection for his alleged psychiatric conditions. Further, although the Board has considered the Veteran’s statements and his Board hearing testimony, in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the Board finds that his statements are not as probative as the VA examiners’ opinions, as they are outweighed by the remainder of the evidence of record and were made under circumstances indicating bias or interest. Importantly, although the Veteran reported that he had combat service in Vietnam which caused his PTSD, the records do not indicate he had combat service; his statements as to his service were inconsistent; and his alleged stressors from service were not verified, although the RO requested information in order to attempt to corroborate them. Even more significant, the Board notes that the Veteran reported several times that he was reporting to VA for mental health evaluations in order to assist his financial claim for disability with Social Security and VA, and his psychological tests showed over-reporting of symptoms. Finally, as discussed above, the Veteran’s statements were inconsistent, and these inconsistencies weigh against his statements relating to an in-service event. In sum, the Veteran’s statements regarding alleged stressors in service and his mental health history are inconsistent and not credible and have been questioned by mental health professionals. Accordingly, while the Veteran’s contentions have been carefully considered, his statements are outweighed by the remaining evidence of record. In sum, the Board finds that the Veteran does not have PTSD. Moreover, and in the alternative, competent medical evidence does not show that he has a current acquired psychiatric disorder, including PTSD, depression, anxiety and dysthymic disorder, that is related to service. In light of these findings, the Board concludes that service connection for an acquired psychiatric disorder of any description is not warranted. In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and the claims are denied. See 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 2. Tinea Manus The Veteran contends that he is entitled to service connection for a skin condition (diagnosed as tinea manus), which he asserts is due to Agent Orange exposure. As noted above, the Veteran was scheduled for an examination in January 2020; however, he failed to report. The record reflects that VA also discussed this failure to report in the July 2020 SSOC, but there was no request to reschedule or statement showing good cause for not reporting. As such, the claim for service connection must be evaluated based on the evidence of record. See 38 C.F.R. § 3.655(b); see also Turk, 21 Vet. App. 565. Here, the Veteran was diagnosed in December 2006 with tinea manus, and it was noted in his past medical history in May 2012 medical records. Although he has not provided medical evidence showing that he has a current disability; in giving the benefit of the doubt in favor to the Veteran, the Board will consider the claim with a current disability since he was diagnosed with tinea manus during the appeal period as the claim was reopened in the prior Board decisions. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a Veteran satisfies the current disability requirement when a disability exists at the time the claim is filed or during its pendency, even if it resolved itself prior to adjudication). Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s skin condition was incurred in or due to service on any basis. First, the Veteran contends the condition is due to being exposed to Agent Orange while serving in Vietnam. His DD-214 shows he served in Vietnam between July 1969 and July 1970, and that he received a Vietnam Service Medal. As such, exposure to herbicide agents is conceded. However, this skin disorder is not presumed service connected under 38 C.F.R. § 3.309(e). As such, service connection on a presumed basis is not warranted. Next, service connection for tinea manus may still be granted on a direct basis; however, the evidence is against finding that a medical nexus exists between the Veteran’s tinea manus and an in-service injury, event or disease. Although the Board is giving the Veteran benefit of the doubt that he has a current disability, the medical records do not indicate it was due to or related to service. First, the Board notes the Veteran’s STRs revealed that the condition of his skin was normal. His March 1971 separation examination indicated he marked yes and no under skin issues, but the physician stamped he had no illnesses during service. Further, his current medical records do not indicate that he has received ongoing treatment, and there is no evidence indicating the condition is due to service. Specifically, a September 2009 private medical record indicated that the Veteran reported his skin conditions were in direct relation to being exposed to Agent Orange (but no doctor opined as such). In October 2009 SSA records, it was noted he had a history of tinea manus and that the Veteran believes the various lesions on his hands and feet may be fungus and that he has taken various medications for it, but does not remember what they are. It was noted that he had a history of a possible benign cyst removed from his wrist. An examination noted there was no obvious evidence of any skin tumors or tinea infection in the hands. As noted above, the Veteran failed to report to his scheduled VA examinations in order for a medical nexus opinion to be obtained; nor did he submit any other medical opinions indicating that his skin condition is related to service. While the Veteran believes his skin condition is related to an in-service injury, event, or disease, including exposure to Agent Orange, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education/knowledge. Jandreau, 492 F.3d 1372, 1377. Consequently, the Board does not give his opinions any probative weight. Accordingly, as the preponderance of the evidence is against finding that service connection for a skin condition is warranted on any basis, to include as due to Agent Orange exposure, it is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.