Citation Nr: 21068942 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-05 611 DATE: November 17, 2021 ORDER Service connection for arthritis, right knee, is granted. REMANDED Entitlement to service connection for a skin disorder, to include as residuals of a cold weather injury, is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, symptoms of his right knee disability, diagnosed to include arthritis, have existed continuously since separation from service. CONCLUSION OF LAW The criteria for service connection for arthritis, right knee, are met. 38 U.S.C. §§ 1101, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION 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. Most recently, in January 2021, 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. Entitlement to service connection for arthritis, right knee. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection can be demonstrated for a disease diagnosed after service 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). In order to establish service connection, the evidence must generally 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including arthritis. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). In addition, such chronic diseases may be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of compensable degree or more within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 a November 1958 Certification, the Veteran asserted that there had been no change in his physical condition his last examination, save for throat and dental issues. Limited service records are available to the Board for review due to fire-related loss. The RO was made aware by the National Personnel Records Center (NPRC) of such loss in January 2016 and the Veteran was informed of the same in January 2016. In a January 2020 Disability Benefits Questionnaire (DBQ), the examiner diagnosed the Veteran with degenerative arthritis. The Veteran reported his in-service fall while marching and intermittent right knee pain since. The examiner opined that the Veteran's arthritis of the right knee was less likely than not related to service, as his service treatment records were silent for any right knee condition and his X-ray examination revealed degenerative arthritis, common in the aging process, greater than 50 years after separation from service. The Board, in it is January 2021 remand, determined that the January 2020 VA opinion was inadequate, as it 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. In February 2021, the same VA examiner who submitted the January 2020 opinion offered almost the same opinion. She opined that it was less likely than not that the Veteran's arthritis of the right knee was related to service, as there was no evidence of a chronic right knee condition during service and no new medical evidence of chronicity of care for a right knee condition. She discussed that there was an acute bruise of the right knee during service, with service treatment records silent for a right knee condition, and his X-ray examination revealed degenerative arthritis, common in the aging process, greater than 50 years after separation from service. While it appears that the VA examiner, in the February 2021 opinion, considered the Veteran's lay statements that he bruised his right knee during service, she did not consider or address his lay statements as to in-service right knee symptoms, including pain, or intermittent right knee symptoms since service. The Veteran is competent to report that he experienced right knee symptoms during and since separation from service. The Veteran has participated fully in the adjudication of his appeal, responding to all VA inquiries for information and providing consistent accounts of his in-service and post-service symptoms. The Board finds no basis upon which to consider that he is not credible in this regard. Layno, 6 Vet. App. 465, 470; 38 C.F.R. § 3.159 (a)(2). Without consideration of the Veteran's lay statements, deemed competent and credible, and thus probative evidence in the present appeal, the VA opinions are of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Based on the forgoing, and resolving all doubt in favor of the Veteran, there is evidence of a current right knee disability, diagnosed to include arthritis, evidence of in-service right knee bruising, and evidence of continuous right knee symptoms since service. 38 U.S.C. §§ 1101, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for arthritis, right knee, is warranted. REASONS FOR REMAND Entitlement to service connection for a skin disorder, to include 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-five 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-up 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, and 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 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 VA 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 Board, in it is January 2021 remand, determined that the January 2020 VA opinion was inadequate as 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. In February 2021, the same VA examiner who submitted the January 2020 opinion offered almost the same opinion. She opined that it was less likely than not that the Veteran's skin condition was less likely than not related to service, as there was no evidence of a chronic skin condition greater than 60 years after service, no new medical evidence for a skin condition, exposure to extremely cold temperatures, sometimes being negative sixty-six degrees. She discussed that the Veteran's service treatment records were silent for a skin condition and a March 2018 VA dermatological consultation records indicates that the Veteran was diagnosed with pruritus, eczematous dermatitis, and onychomycosis, greater than 60 years after separation from service. While it appears that the VA examiner, in the February 2021 opinion, considered the Veteran's lay statements that he was exposed to extremely cold temperatures, sometimes being negative sixty-six degrees, she did not consider or address his lay statements as to in-service exposure to extremely cold temperatures, skin symptoms, or skin symptoms since service. The February 2021 VA opinion is adequate. In this regard, in a January 2021 statement, the Veteran reported that his skin condition was getting worse. In a February 2021 statement, the Veteran asserted that his in-service participation in gas mask drills could have caused his current skin disorder. In February 2021, the Veteran submitted a color photograph of himself with significant discoloration of the right side of his face and right arm. On remand, the RO should afford the Veteran a new VA examination and obtain an adequate medical opinion. The Board, in its January 2021 remand, discussed the efforts of the Veteran and the RO in obtaining any available service records. 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. 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. The Board sought a NA Form 13055, Request for Information to Reconstruct Medical Data, on a number of occasions, from the Veteran that identifies his specific unit, company, battalion, regiment, or squadron. However, he has only been able to state, on each submitted NA Form 13055, that he served with the 9th Infantry Division at Ft. Wainright and Ladd Air Force Base. It is clear that the Veteran, as noted, has participated fully in the adjudication of his appeal, responding to all VA inquiries for information and has no further information in this regard. The most recent VA treatment records available for Board review are dated in January 2021. 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 January 2021 to the present. 2. Schedule the Veteran for a VA examination for his skin disorder with an appropriate examiner, an examiner who did not conduct the January 2020 VA examination. The examiner must review the claims file. The examiner is asked to provide a response, with complete rationale, to the following: Is the Veteran's skin disorder, including any skin disorder diagnosed during the current appeal, including, but not limited to, vitiligo, allergic dermatitis, excessive or persistent dermatitis, lesions, diffuse pruritus, psoriasiform dermatitis and atopic dermatitis, at least as likely as not (at least 50 percent probability) related to service, specifically, to claimed in-service: (1) exposure to extremely cold temperatures, sometimes being negative sixty-six degrees; or (2) participating in gas mask drills? 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, specifically, his report that during service he got little specks on cheeks and 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" and advised to use sunscreen and wear glasses and a hat, and his assertion that his skin condition did not start "getting bad" until separation from service, three or four years later when it started to grow, the pigmentation, all over his hands, body, and face. A discussion of the nature of cold-injury skin disorders in general, and how such are similar or dissimilar to the Veteran's skin disorder during the course of the current appeal, would be helpful. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 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.