Citation Nr: 21063886 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-29 903 DATE: October 18, 2021 ORDER Entitlement to service connection for a mental disorder is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for scars is remanded. Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure, is remanded. FINDING OF FACT The Veteran does not have a diagnosed mental disorder. CONCLUSION OF LAW The criteria for service connection for a mental disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before a Veterans Law Judge in November 2019; however, the Veteran failed to appear. As the Veteran has not presented good cause for failing to appear, the Board deems his hearing request withdrawn. 38 C.F.R. § 20.704 (d). In January 2020, this matter was previously before the Board and was remanded for further development. While the claims have been returned for further appellate review, the Board finds that additional development is necessary with regard to the Veteran's service connection claims for a back disability, scars, and a skin disorder. Thus, remand is warranted for those claims. However, as remand directives have been substantially complied with, the issue of service connection for a mental disorder will be adjudicated in the decision herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran submitted additional evidence after issuance of the August 2020 Supplemental Statement of the Case (SSOC); however, the automatic waiver applies. 38 U.S.C. § 7105 (e). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). 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). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). The Veteran seeks service connection for a mental disorder due to service in Vietnam. After reviewing the evidence of record, the Board finds that service connection is not warranted. In support thereof, the Board notes that in the Veteran's June 2016 PTSD examination, the examiner found that the Veteran did not have a diagnosis for PTSD or any other mental disorder. In the examination, the Veteran reported that he never sought mental health service. He denied mood problems and anxiety. Although his brother, who was present during the exam, noted that the Veteran worries a lot, he did not indicate that the Veteran's worries were related to service. In addition, the Veteran reported having nightmares, but not about Vietnam; and he denied intrusive thoughts about Vietnam. The examiner found that the Veteran met the criteria of directly experiencing a traumatic event, but he did not meet any other criteria required for a PTSD diagnosis, nor did he have any other mental disorder. Consistent with this finding are VA treatment records which show no mental health diagnosis related to service; negative PTSD and depression screens; and the Veteran's consistent denial of depression and anxiety. The Board recognizes the record contains a diagnosis of adjustment disorder in May 2018; however, this was not due to the Veteran's service. Rather, the examiner noted that this was caused by the Veteran's chronic pain and circumstances related to his mother and daughter. Specifically, it was noted that the Veteran's mother had died recently, and his brother reported that the Veteran was adversely affected by his daughter being placed in a group home. The Board also observes a March 2002 private treatment record which shows the Veteran had a history of depression; however, the records do not show a specific diagnosis for depression, nor did the examiner relate the Veteran's history of depression to service. Even if the Board considered the notation as a diagnosis, the record does not contain a current diagnosis for depression, which is consistent with the Veteran's consistent denial of depression. See VA treatment records from July 2012, October 2013, June 2015, and May 2018. Moreover, while the Veteran reported having nightmares in his September 2016 Notice of Disagreement, he denied the same in private treatment records and in his June 2016 PTSD examination. Furthermore, a September 2014 private treatment record shows the Veteran denied nightmares, anxiety, panic, and depression. The Board further observes that the Veteran asserted the June 2016 mental health examiner was not qualified; however, the Board notes that VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Further, the Board may assume a VA medical examiner is competent as part of the presumption of regularity that attaches to the actions of public officials. Id.; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). Here, there is nothing in the opinion to suggest, and the Veteran has not specifically raised any contentions, that the examiner was not qualified through lack of education, training, or experience to render an opinion regarding the Veteran's service connection issue on appeal. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). Therefore, the Board finds the June 2016 VA examiner qualified and competent to provide the requested examination report. To the extent that the Veteran contends that the examination is inadequate because he disagrees with the examiner's findings, the Board does not find that the examination is inadequate merely because the examiner did not provide favorable findings. The June 2016 VA examiner's opinion was based on a review of the Veteran's medical records, his lay reports of symptoms and medical history, and his brother's lay reports who was present during the examination. For the above reasons, the Board finds that the examiner's opinion is adequate for purposes of deciding the Veteran's claim in the instant appeal. Moreover, the Veteran has not submitted any other medical opinion to be weighed against the VA examiner's opinion, and VA and private treatment records are consistent with the VA examiner's opinion. Therefore, the Board also finds the June 2016 VA examination is the most probative evidence of record in this regard. Based on the foregoing, the Board finds service connection is not warranted. Here, the Veteran has inconsistently reported having psychiatric symptoms, has not sought treatment for psychiatric symptoms, and he has not otherwise demonstrated that he has been diagnosed with a mental health disability. Moreover, the record, which includes private and VA treatment through August 2020, is absent of a current psychiatric disability. In the absence of a current disability, service connection cannot be granted. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Board finds the preponderance of the evidence is against a grant of service connection for a mental disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107 (b). REASONS FOR REMAND Lumbar Spine Disorder In a June 2016 VA examination for his back, the examiner found that the Veteran's back disability was not related to service. In doing so, the examiner found that while the Veteran was diagnosed with muscle strain in 1969, the injury was not likely to develop into his currently diagnosed lumbar spine condition since his separation exam was normal. The examiner further found the Veteran's current lumbar degenerative arthritis is more likely a consequence of normal aging. The Board finds the opinion is inadequate since the examiner did not provide a medical rationale to support her position. In addition, the examiner relied on the Veteran not having a back disability noted on his separation exam, and the examiner did not consider the Veteran's lay statements in his June 2017 VA Form 9 where he stated he did not complain or report on separation because he did not want to jeopardize going home after Vietnam. Moreover, in his VA Form 9, the Veteran further reported having back pain since service, which he attributed to gear, supplies, and heavy ammo he had to carry while in Vietnam. The Veteran is competent to report symptoms in-service, as well as pertinent symptomatology since service, and the Board finds him credible in this regard. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, as the medical opinion is inadequate, remand is warranted to obtain a new opinion to determine the etiology of the Veteran's back disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Skin Disorder and Scars The Veteran's skin disorder was denied service connection because the RO found that the Veteran does not have a skin disability that is presumptively related to Agent Orange. The Board notes, however, that notwithstanding the presumptive provision, a claimant is not precluded from establishing service connection for a disability due to Agent Orange exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Here, the Veteran's herbicide exposure has been conceded, as evidenced in a November 2003 rating decision; and, the record shows several skin diagnoses, to include skin cancer, atopic dermatitis, and mild rosacea. Therefore, an examination is warranted to determine the nature and etiology of the Veteran's skin disorder. With regard to the Veteran's scars, the Veteran reported in September 2020 correspondence that he had burn scars to his face from ammunition burns. Since the Veteran was found to have dermatitis on his face by a June 2002 private examiner, the Board finds VA's duty to assist has been triggered and a VA examination is warranted. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims folder. 2. Schedule the Veteran for VA examinations with a qualified clinician to determine the etiology of the Veteran's back, scars, and skin disorder. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. BACK: Provide an opinion as to whether the Veteran's back disability is at least as likely as not (50 percent probability or greater) related to the Veteran's active duty service, to include heavy lifting and carrying as a result of his military service in the Republic of Vietnam. SKIN: Provide an opinion as to whether the Veteran's skin disorder is at least as likely as not (50 percent probability or greater) related to the Veteran's active duty service, to include Agent Orange exposure and sun exposure as a result of service in the Republic of Vietnam. SCARS: Provide an opinion as to whether the Veteran has any scars that are at least as likely as not (50 percent probability or greater) related to the Veteran's active duty service. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, and all other lay evidence of record, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.