Citation Nr: 21003752 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 12-05 494 DATE: January 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include an adjustment disorder with anxiety and depressed mood and depression, is denied. Entitlement to service connection for dermatophytosis is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had an acquired psychiatric disorder, to include an adjustment disorder with anxiety and depressed mood and depression, at any time during or approximate to the pendency of the claim. 2. The Veteran’s dermatophytosis had its onset during service or is the result of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and depressed mood and depression, is denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for dermatophytosis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1983 to January 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision issued by a Department of Veterans Affairs Regional Office (RO). Subsequently, in a March 2017 and March 2019 decision, the Board remanded the matter for additional development. The remands directed that a VA examination be conducted to determine the nature and etiology of the Veteran’s claimed acquired psychiatric disorder and asked the Veteran to provide identifying information and authorizations needed to obtain any updated or outstanding records of treatment. Updated VA treatment records have been associated with the record and a March 2017 letter requested that the Veteran to complete an authorization form to allow VA to obtain treatment records from any private or VA provider. Such an examination was conducted in October 2019. Therefore, the Board finds that there has been substantial compliance with its March 2017 and March 2019 remand directives, and no further action in this regard is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). A June 2020 rating decision granted the Veteran’s claim for service connection for left ulnar neuropathy and assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis and psychosis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 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). 1. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and depressed mood and depression, is denied. The Veteran generally contends that his major depressive disorder is related to his service. Service treatment records reflects an assessment of an adjustment disorder with anxiety and depressed mood. However, the Veteran told his provider that he planned on cancelling his mental health appointment because he was worried about his security clearance. Post-service treatment records in March 2010 reflect complaints of depression for two weeks and a diagnosis of depression in April 2010 with symptoms of depression, daytime somnolence, decreased functioning ability, and being upset by problems at home or work. An April 2017 VA examination report reflects the examiner’s opinion that the Veteran did not suffer from any mental health disorder. The examiner noted that the Veteran had never seen a mental health provider and had not been provided a mental health diagnosis or treatment. Further, during the examination, the Veteran denied suffering from mental health symptoms, and indicated he was not sure why he was at the VA examination. The examiner noted that there were multiple medical progress notes in the Veteran’s chart that listed “the possible diagnosis of adjustment disorder with depression.” However, since there were no mental health progress notes and the Veteran had never seen a mental health provider, “it was unclear who or when the possible diagnosis was made.” Instead, the examiner found that it was “clear that someone listed adjustment disorder as a possible entity, and this simply kept being repeated over many chart notes.” Thus, he opined that it was less likely than not that the Veteran had a mental health disorder that was due to service. However, the lack of treatment records, alone, cannot form the basis of a medical opinion. In addition, when the Veteran was first diagnosed with adjustment disorder with anxiety and depressed mood in January 2009, he explained to his medical provider that he did not want to go to a mental health clinic because he was worried about his security clearance. Thus, the Board found that this opinion was inadequate in its March 2019 decision. The Veteran was subsequently afforded a VA examination in October 2019, with the same examiner from April 2017. The examiner again opined that the Veteran did not suffer from a mental health disorder, including depression, stating that it is less likely than not that the Veteran presently suffered from or ever suffered from a mental health disorder. The examiner acknowledged the rule that a mental health provider may not deny the presence of a mental health disorder based on a lack of treatment records. The examiner stated that he based his determination, not on the absence of treatment records, but rather on the Veteran’s own assertions and history the Veteran provided stating he had never suffered from a mental health disorder. The examiner reiterated the explanation offered in April 2017, that an initial medical note had been erroneously made in 2009 on the Veteran’s record stating the Veteran suffered from an adjustment disorder with mixed anxiety and depressed mood. That note was then erroneously referenced in the Veteran’s subsequent medical evaluations. The examiner also noted that the Veteran had not received any further mental health evaluation other than a previous evaluation in 2017 of the Veteran conducted by the same examiner. The examiner also referenced a medical progress note from June 2010 by Dr. S. M., who although listed the Veteran as suffering from depression, did not diagnose Veteran with depression and rather diagnosed him with sleep apnea. In conclusion, the October 2019 examiner opined that there was not sufficient pathology to render a diagnosis for a mental health condition. The opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). It is afforded great probative weight. There is no contrary opinion of record. In the instant case, service connection for acquired psychiatric disorder must be denied based on the lack of a current diagnosis. The record does not reflect a current diagnosis of n acquired psychiatric disorder, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, supra. Post-service VA treatment records do not document a current diagnosis of an acquired psychiatric disorder. The Board acknowledges the Court’s holding in Saunders but does not find a basis for determining that there is functional impairment related to a diagnosis of an acquired psychiatric disorder. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran denied psychiatric symptoms and did not report functional impairments in the October 2019 VA examination report. Moreover, the October 2019 VA examiner specifically found that the Veteran did not meet the diagnostic criteria for an acquired psychiatric disorder as there were no findings, signs and/or symptoms to support a diagnosis. The October 2019 VA examination report and current clinical records do not support a diagnosis of a current disability that confirms with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) as is required for compensation for psychiatric disabilities. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, supra. Therefore, as the evidence of record shows that the Veteran does not have a current diagnosis of an acquired psychiatric disorder, the Board concludes that service connection is not warranted, and no further discussion of the remaining elements is necessary. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”); see also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection). In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. As a lay person, the Veteran is competent to report observable symptoms, such as having anxiety. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability”); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. While the Veteran is competent to report having experienced symptoms of anxiety, he is not competent to provide a diagnosis in this case or to determine that these symptoms are somehow related to his active service. This issue of diagnosing an acquired psychiatric disorder is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence in this case. Accordingly, service connection for an acquired psychiatric disorder is not warranted. In reaching this conclusion, the Board has 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. See 38 U.S.C. §§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to service connection for dermatophytosis is granted. The Veteran asserts that he is entitled to service-connection for a dermatophytosis condition. The Veteran’s skin condition has been treated variously in the past as eczema, dermatitis, lichen planus, and dermatophytosis. The Veteran was provided a VA examination in May 2017, which confirmed diagnoses for dermatophytosis and lichen planus. The Veteran’s skin conditions were noted as manifesting all over his scalp, axillae, groin, legs, and feet, representing 10 percent exposed and 25 percent of the full body surface areas. The examiner opined that both the lichen planus condition and dermatophytosis were at least as likely as not (50 percent probability or greater) related to the Veteran’s military service. The AOJ subsequently granted the Veteran service connection for lichen planus on this basis. The dermatophytosis remains yet to be granted service connection, and is the subject of this claim. Subsequently, the Veteran’s October 2019 VA examination described his symptoms as a “scaly rash”. The examiner noted that the Veteran’s condition had treated as eczema and dermatophytosis in the past. The examiner also noted the same condition was documented in the Veteran’s service treatment records as having been treated as a “scaly rash” in May 1984 and as “nummular eczema” in June 1984. In regard to etiology, the examiner went on opine that the Veteran’s condition was at least as likely as not (50 percent probability or greater) incurred in or caused by his service. Upon a thorough review of the evidence of record, the Board finds that the requirements for service connection have been met. The Veteran has a “current disability”, thereby meeting the first requirement. The Veteran’s condition has been confirmed by medical opinion to have had its onset during the 1980s, during the Veteran’s time in-service. Further, the condition has been opined by an appropriate clinician to be at least as likely as not related to the Veteran’s service. Therefore, the second and third requirements for service connection have also been met. Although the May 2017 October 2019 VA opinions contain only a brief rationale, the Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). There is no contrary opinion of record. Based on the weight of this evidence, which arises to at least equipoise or greater, the Board finds that service connection for dermatophytosis is warranted. Accordingly, the Veteran’s claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.