Citation Nr: 21001733 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 18-05 611 DATE: January 11, 2021 ORDER Service connection for a jaw disorder is denied. Service connection for an acquired psychiatric disorder, to include as secondary to a skin disorder, is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a skin disorder, claimed as residuals of a cold weather injury, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a jaw disorder. 2. The Veteran does not have a current diagnosis of an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a jaw disorder have not been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1955 to November 1958. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board); a transcript of that hearing has been associated with the claims file. In March 2019, the Board remanded these issues to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. The Board, in its March 2019 remand, discussed that an April 2016 rating decision denied the Veteran’s claim of entitlement to service connection for a dental disorder, that in June 2016, he submitted a timely Notice of Disagreement (NOD) with respect to the entire April 2016 rating decision, and that the issue was not addressed in the December 2017 Statement of the Case (SOC). The Board took limited jurisdiction of the issue solely for the purpose of directing the RO to furnish the Veteran with a SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The RO issued a July 2020 SOC as to the Veteran’s claim of entitlement to service connection for a dental disorder; however, he did not perfect an appeal of his claim to the Board. The issue is thus not before the Board. Service Connection Entitlement to service connection for a jaw disorder and entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a skin disorder. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). 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); 38 C.F.R. § 3.303 (a). A disability which is proximately due to or the result of or aggravated by a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). “Pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The United States Court of Appeals for the Federal Circuit in Saunders, however, cautioned against the notion that “a Veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the Veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “‘to function under the ordinary conditions of daily life including employment.’“ Id. at 1363 (quoting 38 C.F.R. § 4.10). However, with respect to mental conditions, compensation is limited to disabilities that conform to a DSM-V diagnosis. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). The Board has considered the Veteran’s service connection claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In a May 2015 statement, the Veteran asserted that, in pertinent part, resultant to an in-service incident wherein he was stepped on by a fellow service member and fell face-down on the ground, injuring his forehead, nose, and knocking out his top front tooth, which was replaced during service, he has experienced continued jaw pain, flashbacks, and dreams. During his October 2018 Board hearing, the Veteran asserted that his service treatment records showing damaged teeth support his assertions that he injured his mouth, teeth, and jaw, during the in-service fall. He reported that during the in-service fall, he was bleeding from the jaw and had resultant to blackened bruises, swelling, bleeding gums, additional tooth problems, and jaw pain. The Veteran reported that his depression was related to the in-service fall or secondary to his skin disorder, that his while mental outlook had changed, that he was never the same since the in-service fall, that he was weaker and “everything else” and had not recovered his full strength. He asserted that he had the same dream of falling since service, about ten times each year and that he also dreams about becoming an ogre or hideous monster from his skin disorder. He reported that he had started to wear make-up to cover the pigmentation in areas, that without it, he looked as if he had been through a fire, or had leprosy albinism. He asserted that he was very depressed most of the time, that his personality has changed, and that he had developed an inferiority complex. The Veteran’s VA treatment records dated during the current appeal, and in the years prior, are silent for complaints, treatment, or diagnoses of jaw disorder or acquired psychiatric disorders. Negative depression screening results are included in the VA treatment records dated in April 2014, May 2016, March 2017, February 2018, March 2018, and in September 2019, he denied depression and anxiety. In a January 2020 Disability Benefits Questionnaire (DBQ), the examiner did not diagnose a jaw disorder, specifically finding no temporomandibular joint disorder (TMJ). The Veteran reported difficulty opening his mouth status-post a fall while marching during service. He denied treatment for such. Physical examination revealed an inter-incisal distance of greater than thirty-four millimeters and right and left lateral excursion of greater than four millimeters, the greatest motion range contemplated by the examination report. The examiner noted X-ray examination results silent for a diagnosis of a jaw disorder. The examiner reported that there was no objective evidence of a chronic jaw disorder claimed as TMJ, and that there was no impact on his ability to work, flare-ups, no functional loss or impairment, functional loss after repetitive use, pain, crepitus or clicking, dietary restrictions, additional contributory factors of disability, or related pertinent physical findings, complications, conditions, signs, or symptoms. In a January 2020 DBQ, the examiner did not diagnose an acquired psychiatric disorder. The examiner provided recitation of the Veteran’s lay statements and testimony of record, included above, describing his in-service fall, in pertinent part, with loss of consciousness and resultant sleeping problems, dreams, and flashbacks. He reported that he had started to wear make-up to cover his excessive pigmentation, and discussed that his sleep problems, with dreams of the in-service fall and/or becoming an ogre or hideous person, had become worse since his appearance had become worse, that he was very depressed most of time, that his personality had changed, and that he had developed an inferiority complex; he asserted that his mood could have been caused by his in-service fall or his skin disorder. The Veteran denied in-service and post-service psychiatric treatment. He reported that he had a very good relationship with his current and second spouse, as well as his surviving siblings, children, grandchildren, and great grandchildren. He reported that he enjoyed reading, watching television, spending time with his spouse and a group of friends, going to eat out, and golfing and walking on his treadmill, with some difficulty from physical problems. He reported that he was enjoying retirement. He denied anxiety and significant cognitive issues, and reported some issues with his memory, attributed to old age; the examiner noted some delayed recall on testing. The Veteran reported that his mood was “pretty good” save for a “bad day here and there” during which he’d wake with a headache from a bad dream feeling a “little depressed.” He denied loss of appetite, crying spells, lack of motivation, and depressed mood. Mental status examination was unremarkable save for the delayed recall on testing. The examiner reported that review of the Veteran’s VA treatment records was silent for any mental health issues, complaints, or treatment and that current depression testing yielded normal results. The examiner concluded that the Veteran did not currently have a diagnosis for any mental condition, to include depressive disorder; and reasoned that the records were silent for such, he denied clinically significant symptoms of depression or anxiety, his dreams woke him infrequently, with no other trauma symptoms noted, and he attributed his occasional trouble engaging in activities he enjoyed to physical problems, not mental health issues. The preceding represents the relevant clinical and lay evidence in the current appeal. Over the course of the appeal, the Veteran and the VA have attempted to obtain the Veteran’s service treatment records using alternate sources as the original records were deemed to have been destroyed in a fire at the National Personnel Records Center (NPRC). As the salient issue before the Board with respect to the claims of entitlement to service connection for a jaw disorder and an acquired psychiatric disorder, to include as secondary to a skin disorder, is first whether the Veteran has current diagnoses of jaw and acquired psychiatric disorders, further inquiry as to any in-service event or other disorder to which any current diagnoses may be attributed is not yet warranted. The Veteran’s VA treatment records are silent for diagnoses of jaw and acquired psychiatric disorders and the VA examiners, in the January 2020 DBQs, after review of the claims file, examination of the Veteran, and consideration of his lay statements, determined that there were no diagnoses of a jaw disorder or an acquired psychiatric disorder that conform to a DSM-V diagnosis. While the Veteran reported jaw pain in his lay statements and testimony, he did not report pain during his January 2020 DBQ, complaining only that he had difficulty opening his mouth. To the extent that while the VA examiner, in the January 2020 DBQ, did not diagnose a jaw disorder, and there is lay evidence of jaw pain, it is significant that the examiner found no impact on the Veteran’s ability to work or functional loss or impairment related to the jaw. The Veteran has not offered any lay statements describing any pain reaching the level of a functional impairment of earning capacity. Saunders, 886 F.3d 1356, 1368. While the Veteran generally asserts that he has jaw or acquired psychiatric disorders, the Board finds that such assertions are not competent, as the diagnoses of such are complex medical questions. There is no evidence that he has the requisite medical expertise or training to diagnose himself with jaw or acquired psychiatric disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). His assertions thus lack probative value, as they are not competent. In this regard, the Board places greater probative weight on the January 2020 opinions of the VA examiners, given their medical training. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, the most probative evidence has not shown that the Veteran was diagnosed with a jaw disorder, considering any pain reaching the level of a functional impairment of earning capacity, or an acquired psychiatric disorder under the required DSM-V criteria, at any time during the period on appeal. Saunders, 886 F.3d 1356, 1368; Martinez-Bodon, 32 Vet. App. 393. As such, this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The claim of entitlement to service connection for a jaw disorder and the claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a skin disorder, are denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder is remanded. In a May 2015 statement, the Veteran asserted, in pertinent part, that resultant to an in-service incident wherein he was stepped on by a fellow service member and fell face-down on the ground, injuring his forehead, nose, knocking out his top front tooth, which was replaced during service, and bruising his right knee, he has experienced continued “blacks and blues,” and intermittent right knee pain. During his October 2018 Board hearing, the Veteran asserted that he had in-service treatment for right knee complaints after his in-service fall, that he was given medication and underwent X-ray examination. He reported that he had been treated soon after service at a facility that had destroyed his private treatment records. He asserted that he became tired of reporting right knee symptoms, as he was told that he had a trick knee or muscle spasm, and then when he got older, told that he had degenerative arthritis. The Veteran’s service treatment records available for review, including his July 1958 Report of Medical Examination, conducted for separation from service, are silent for complaint, treatment, or diagnosis of a right knee disability. A May 1957 entry indicates that the Veteran complained of sore legs from the track team, without reference to right knee complaints or diagnosis. In its March 2019 remand, the Board directed the RO to afford the Veteran a VA examination of his right knee disorder and obtain an adequate etiological opinion. In a January 2020 DBQ, the Veteran was diagnosed with bilateral knee degenerative arthritis, date of onset 2015. He reported that he injured his right knee during service when he fell while marching and complained of intermittent right knee pain. In January 2020, the examiner opined that the Veteran’s right knee disorder was less likely than not related to service and reasoned that his service treatment records were silent for a right knee condition and that X-ray examination revealed degenerative arthritis common in the aging process, more than fifty years after separation from service. The January 2020 opinion is inadequate. The examiner did not consider or address the Veteran’s lay statements as to in-service right knee symptoms and treatment, or intermittent right knee symptoms since service. On remand, the RO must obtain an adequate etiological opinion. 2. Entitlement to service connection for a skin disorder, claimed as residuals of a cold weather injury, is remanded. In a May 2015 statement, the Veteran asserted that while stationed in Alaska, he incurred his current skin disorder, due to excessive cold weather, sometimes being negative sixty-six degrees. He reported that pigmentation started appearing on his hands and face and he was examined by many physicians, including dermatologists, and was told not to be concerned. He asserted that the condition had not improved during service and that in 2014, it started to spread to more areas over his face, neck, hands, and arms, and he started wearing make-ups to cover the pigmentation; without such he appeared as though he had been through a fire or had leprosy, albinism, or vitiligo. During his October 2018 Board hearing, the Veteran asserted that he has a diagnosis of vitiligo, but also had been diagnosed with unspecified skin conditions. He asserted that during service, it was so cold that he was not even allowed to go outside; he reported that he got little specks on cheeks, and that he sought treatment on three or four occasions for the same, during which he was told that “they were nothing and it was a whatever skin condition.” He reported that he was advised to use sunscreen and wear glasses and a hat. He asserted that his skin condition did not start “getting bad” until separation from service, three or four years later. He reported that it started to grow, the pigmentation, all over his hands, body, face. VA treatment records dated in as early as May 1997 indicate that the Veteran reported an itchy rash for one month; and in December 1997, he reported a rash for more than one year and was diagnosed with psoriasis. VA treatment records dated in May 2015 indicate that the Veteran was diagnosed with vitiligo, all over his face, arms, chest, neck, and shoulders, for years. The treatment provider noted allergic dermatitis, excessive or persistent dermatitis, and small risk for fungal skin rash. During a March 2018 VA dermatological consultation, the Veteran presented with a lesion on his left shoulder, diffuse pruritus, and reported that such had always been itchy, the treatment provider noted a history including vitiligo for more than twenty years, over the knuckles, peri-orally, and in the scalp and a history of presumed psoriasiform dermatitis and atopic dermatitis. In its March 2019 remand, the Board directed the RO to afford the Veteran a VA examination of his skin disorder and obtain an adequate etiological opinion. In a January 2020 DBQ, the Veteran was diagnosed with vitiligo, date of diagnosis unknown. The Veteran reported skin discoloration, white blotches, on his arms and face, without treatment. Physical examination revealed vitiligo, small white blotches on arms and face, without psoriasis or dermatitis noted, without any other skin condition found present. In January 2020, the examiner opined that the Veteran’s skin condition was less likely than not related to service, reasoning that his service treatment record were silent for the claimed skin condition, vitiligo, psoriasis, or dermatitis, or cold weather injury. The January 2020 opinion is inadequate. The examiner did not consider or address the Veteran’s lay statements as to in-service exposure to extremely cold temperatures, skin symptoms, or skin symptoms since service. On remand, the RO must obtain an adequate etiological opinion. As to the each of the claims remanded herein, the Board, in its March 2019 remand, discussed that by a May 2015 letter, the National Personnel Records Center (NPRC) informed the Veteran that his service records may have been destroyed in a fire in July 1973. During the course of the appeal, and most recently resultant to the Board’s March 2019 remand, the RO requested, most recently, in December 2019, that the Veteran complete a NA Form 13055, Request for Information to Reconstruct Medical Data. The Veteran has not submitted a NA Form 13055 that identifies his specific unit, company, battalion, regiment or squadron; he has only been able to state, most recently, in a June 2020 statement, resultant to the RO’s December 2019 request, that he served with the 9th Infantry Division from July 1956 to July 1958 at Ft. Wainright and Ladd Air Force Base. A February 2020 response from the NPRC indicates that a search for records of the 9th Infantry Division was impossible due to a lack of company or battery information. During the October 2018 Board hearing, the Veteran’s representative discussed there exists additional information regarding the Veteran’s service, specifically, that from November 1955 to February 1956, he was in basic training at Fort Jackson, he was in advanced infantry training from February 1956 to July 1956 at Fort Lewis, from July 1956 to July 1958, he was at Fort Wainwright/Ladd Air Force Base, and from November 1958 until his separation from service, he was at Fort Devens. Also, of record is an undated abstract of service indicating that from December 24, 1956, to October 14, 1958, the Veteran was assigned to Company K in the 9th Infantry Division at Ladd Air Force Base, and from October 15, 1958, onward until an unknown date, he was assigned to the Headquarters Battery, 1st Howitzer Battalion, 76th Artillery, at Fort Devens. On remand, the RO should forward another NA Form 13055 to the Veteran and request that he attempt to complete such considering the information discussed at his October 2018 Board hearing and contained in the undated abstract of servicecited herein. Also, the most recent VA treatment records available for Board review, save for the reports of January 2020 VA examinations, are dated in September 2019. On remand, the RO should obtain and associate with the claims file the Veteran’s updated VA treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2019 to the present. 2. Request that the Veteran submit a completed NA Form 13055, Request for Information to Reconstruct Medical Data. Advise the Veteran that it is necessary to provide information identifying his specific unit, company, battalion, regiment or squadron in order to complete a request for his records and provide him the information discussed at his October 2018 Board hearing and contained in the undated abstract of service cited herein, that from November 1955 to February 1956, he was in basic training at Fort Jackson, he was in advanced infantry training from February 1956 to July 1956 at Fort Lewis, from July 1956 to July 1958, he was at Fort Wainwright/Ladd Air Force Base, and from November 1958 until his separation from service, he was at Fort Devens, and from December 24, 1956, to October 14, 1958, the Veteran was assigned to Company K in the 9th Infantry Division at Ladd Air Force Base, and from October 15, 1958, onward until an unknown date, he was assigned to the Headquarters Battery, 1st Howitzer Battalion, 76th Artillery, at Fort Devens. 3. If the Veteran completes and returns the NA Form 13055 as requested above, the RO should contact the Records Reconstruction Unit of the NPRC, or any other appropriate agency or department, supply the Veteran’s completed NA Form 13055, and request an additional search from any appropriate alternate sources. All efforts to obtain these records should be documented and any negative response should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). 4. Then, forward the Veteran’s claims file to the VA examiner who conducted the January 2020 examination of the Veteran’s right knee disorder, or a suitable substitute, and obtain an adequate etiological opinion. If any examiner determines that additional physical examination of the Veteran is required, so schedule the Veteran. The examiner must review the claims file and provide adequate rationale for all opinions rendered. (a) Is the Veteran’s right knee disorder at least as likely as not (at least 50 percent probability) related to service, specifically, to a claimed in-service fall wherein the Veteran was stepped on by a fellow service member, falling face-first on the ground, bruising his right knee? In this regard, the examiner must consider and address the Veteran’s lay statements as to his in-service right knee injury, right knee symptoms, and post-service symptoms. (b) Considering that the Veteran’s diagnosis of a right knee disorder includes arthritis, was such at least as likely as not (at least 50 percent probability) either: (1) manifested to a compensable degree within one year of separation from service in November 1958; or (2) has existed continually since separation from service, considering the in-service and post-service the symptoms reported by the Veteran? 5. Then, forward the Veteran’s claims file to the VA examiner who conducted the January 2020 examination of the Veteran’s skin disorder, or a suitable substitute, and obtain an adequate etiological opinion. If any examiner determines that additional physical examination of the Veteran is required, so schedule the Veteran. The examiner must review the claims file and provide adequate rationale for all opinions rendered. Is the Veteran’s skin disorder, any skin disorder diagnosed during the current appeal, at least as likely as not (at least 50 percent probability) related to service, specifically, to claimed in-service exposure to extremely cold temperatures, sometimes being negative sixty-six degrees? In this regard, the examiner must consider and address the Veteran’s lay statements of in-service cold injury, in-service skin symptoms, and post-service skin symptoms. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.