Citation Nr: 21074374 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-00 243A DATE: December 15, 2021 ORDER Relevant service department records previously unassociated with the claims file having been received, the claim of entitlement to service connection for a skin condition will be reconsidered. Relevant service department records previously unassociated with the claims file having been received, the claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and bipolar disorder, will be reconsidered. Relevant service department records previously unassociated with the claims file having been received, the claim of entitlement to service connection for chronic kidney disease will be reconsidered. Relevant service department records previously unassociated with the claims file having been received, the claim of entitlement to service connection for hypertension will be reconsidered. Service connection for a skin condition, diagnosed as actinic keratosis and basal cell carcinoma, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD and bipolar disorder, is remanded. Entitlement to service connection for chronic kidney disease is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for gout of the bilateral feet is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a cardiovascular disability is remanded. FINDINGS OF FACT 1. In November 2001 and September 2012 rating decisions, the RO denied service connection for a skin condition, psychiatric disorder, kidney condition, and hypertension; the Veteran did not file a timely notice of disagreement with either rating decision. 2. In September 2019, VA obtained relevant service treatment records that existed but had not been associated with the claims file at the time of the November 2001 and September 2012 rating decisions. 3. The evidence demonstrates a medical nexus between the current skin condition, diagnosed as actinic keratosis and basal cell carcinoma, and sun exposure during active service. CONCLUSIONS OF LAW 1. Relevant service treatment records having been received subsequent to the November 2001 and September 2012 rating decisions, the claims for service connection for a skin condition, psychiatric disorder, kidney condition, and hypertension will be reconsidered. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(c). 2. The criteria for service connection for a skin condition have been met. 38 U.S.C. §§ 101, 1101, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service in the U.S. Navy from July 1961 to March 1964. The record also indicates that he had subsequent Navy Reserve service. There is evidence of this Reserve service in the claims file, including a July 1971 physical examination report conducted for the U.S. Navy Reserve. Unfortunately, the exact dates and nature of the Veteran's military service following his discharge from active duty in 1964 are unavailable, and VA has not requested service personnel or treatment records for his period of Reserve service. In addition, the Board observes that it appears that not all of the Veteran's service treatment records pertaining to his active service from 1961 to 1964 are available. At the outset, the Board acknowledges that in a case such as this, where service records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This matter comes before the Board of Veterans' Appeals (BVA or Board) from July 2015 and April 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a September 2021 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. Reconsideration of Skin, Psychiatric, Kidney, and Hypertension Claims 1. Relevant service department records previously unassociated with the claims file having been received, the claim of entitlement to service connection for a skin condition will be reconsidered. 2. Relevant service department records previously unassociated with the claims file having been received, the claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and bipolar disorder, will be reconsidered. 3. Relevant service department records previously unassociated with the claims file having been received, the claim of entitlement to service connection for chronic kidney disease will be reconsidered. 4. Relevant service department records previously unassociated with the claims file having been received, the claim of entitlement to service connection for hypertension will be reconsidered. In a November 2001 rating decision, the RO denied service connection for a skin condition, psychiatric disorder, and kidney condition. In a September 2012 rating decision, the RO denied service connection for hypertension. The Veteran did not file a timely notice of disagreement (NOD) with these rating decisions. However, in September 2019, VA obtained relevant service treatment records that existed but had not been associated with the claims file at the time of the November 2001 or September 2012 rating decisions. Accordingly, the Board finds that the claims will be reconsidered under 38 C.F.R. § 3.156(c). Service Connection 5. Service connection for a skin condition, diagnosed as actinic keratosis and basal cell carcinoma, is granted. The Veteran contends that he has had skin cancer on his arms, shoulders, face, and chest due to either exposure to toxic chemicals on the USS Dixie or to excessive sun exposure as a deckhand. He was afforded a VA skin examination in March 2017. The examiner diagnosed actinic keratosis, residual scar due to basal cell cancer removal from left cheek and removal of actinic keratosis from the left upper back and left clavicle, and status post basal cell skin cancer removal from left cheek. The examiner noted diffuse skin lesions due to aging skin changes, actinic keratosis, and some indurated scaly lesions. The lesions were too many to delineate each of them. The Veteran also had hyperpigmented lesions on the scalp and trunk. The examiner reviewed the Veteran's claims file extensively, summarizing his dermatological treatment records, and opined that the claimed skin condition was at least as likely as not incurred in or caused by active service. The examiner reasoned that there was documentation of actinic keratosis in the 1990s and in 2015, and of basal cell carcinoma of the left cheek in 1999. Current examination revealed extensive actinic keratosis and residual scars due to basal cell carcinoma removal. While there was no documentation of actinic keratosis or basal cell carcinoma in service, many of the Veteran's active service activities were outdoors, and it is likely that he developed actinic keratosis over the years, which was documented in the 1990s. Some of the actinic keratotic lesions have changed to basal cell carcinoma. Therefore, the examiner concluded that his current diagnoses were at least as likely related to active service. There are no opinions contrary to that of the March 2017 VA examiner. Therefore, the Board finds that the evidence demonstrates that there is a medical nexus between the current skin condition, diagnosed as actinic keratosis and basal cell carcinoma, and sun exposure during active service, and that service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and bipolar disorder, is remanded. 2. Entitlement to service connection for chronic kidney disease is remanded. 3. Entitlement to service connection for hypertension is remanded. 4. Entitlement to service connection for gout of the bilateral feet is remanded. 5. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. 6. Entitlement to service connection for a back disability is remanded. 7. Entitlement to service connection for a cardiovascular disability is remanded. As noted above, the Veteran had Reserve service following his discharge from active service in 1964. He has alleged that he was involved in a 1967 motor vehicle accident that caused or aggravated a number of his physical disabilities as well as his claimed psychiatric disability, but it is unclear whether this accident occurred during the Veteran's Reserve service. Therefore, a remand is necessary to request and obtain any service treatment and service personnel records from his Reserve service. In addition, the evidence of record demonstrates that the Veteran began receiving Social Security Disability benefits beginning in July 1992 for bipolar disorder. No attempt has been made to obtain records from the Social Security Administration. As these records may be relevant to the Veteran's claim, a remand is necessary to request and associate them with the claims file. The Veteran served aboard the USS Dixie (AD-14) for the majority of his active service from 1961 to 1964. In March 2017, he submitted an internet article that indicated that the USS Dixie provided assistance to the 7th Fleet serving in the Far East. He has stated that the USS Dixie was often tied up to destroyers that had been in the brown waters of Vietnam, and, as such, he was exposed to herbicides. In addition, he has stated that asbestos was in the walls and pipes of the living quarters on the USS Dixie. VA has not yet undertaken any development to verify herbicide or asbestos exposure during the Veteran's service. A remand is necessary to request and obtain any deck logs from the USS Dixie to assist the Veteran in corroborating his claim, including to determine whether the ship was in the blue waters of Vietnam pursuant to the definition provided in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23, and whether the Veteran was exposed to asbestos. Finally, the Veteran has contended that while aboard the USS Dixie, in the fall of 1962, he fell 12 feet down a paint and chemical agents locker room, landing on his head and injuring his back; he believes that this fall also caused or contributed to his psychiatric disabilities. In September 2016, a VA social worker authored a letter discussing this in-service injury and stated that the DSM-4 criteria B, C, and D were met; she did not discuss whether Criterion A (stressor) was met, nor if remaining criteria for a PTSD diagnosis were met. The Veteran's primary care physician, Dr. G., has also authored several letters stating that the psychiatric disabilities were caused, at least in part, by the 12-foot fall in service, but provided no rationale for these opinions. The claims file also includes a September 2016 letter from Dr. V., a private chiropractor, stating that his spinal subluxations and related nerve interference were a direct result of his service aboard the USS Dixie; again, no rationale was provided. The service treatment records associated with the claims file do not document the 12-foot fall; however, as noted above, it appears that some of the Veteran's service treatment records are missing. The Board also notes that the Veteran is competent to describe the in-service injury. In light of his missing service treatment records, the Board finds that a remand is necessary to obtain a VA examination and opinion regarding the nature and etiology of the claimed back and psychiatric disabilities, to include whether the criteria for a diagnosis of PTSD are met based on the in-service incident and whether any other diagnosed psychiatric disabilities were caused by the in-service injury. The matters are REMANDED for the following action: 1. Contact the appropriate departments/organizations and request the Veteran's U.S. Navy Reserve service treatment and personnel records for his Reserve service following his discharge from active service in 1964. All attempts to procure the records should be documented in the file. If any records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and his representative should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 2. Contact the Social Security Administration (SSA) and request a copy of the Veteran's complete SSA disability benefits file, including all associated medical records, and associate all records received with the claims file. All attempts to procure the records should be documented in the file. If the records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and his representative should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 3. Contact the appropriate facility to request deck logs for the USS Dixie from 1961 to 1964 and request any other documentation necessary to determine whether the USS Dixie was stationed in the 12 nautical mile territorial sea of Vietnam during the time that the Veteran was on the ship. 4. Take all necessary steps to verify, through official sources, any in-service exposure of the Veteran to asbestos while serving aboard the USS Dixie (AD-14). All steps taken should be documented and any determinations as to asbestos exposure should be documented in the claims file. 5. Obtain a VA examination and opinion from an appropriate specialist to address the nature and etiology of the Veteran's back disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first identify any and all back disabilities. (b.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's back disability was incurred during or caused by active service, to include as a result of the 12-foot fall he described during active service? The examiner is advised that the Veteran is competent to describe the in-service injury, and his credibility is to be presumed in the context of providing the nexus opinion. In addition, the examiner is advised that they must not rely solely on the absence of documentation of the 12-foot fall or related symptoms in service in providing a negative nexus opinion, as some of the Veteran's service treatment records are missing. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. Obtain a VA examination and opinion from an appropriate specialist to address the nature and etiology of the Veteran's psychiatric disabilities, to include PTSD and bipolar disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first identify any and all psychiatric disabilities, to include a discussion of whether the DSM-5 criteria for a PTSD diagnosis are met. (b.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's psychiatric disabilities were incurred during or caused by active service, to include as a result of the 12-foot fall he described during active service? The examiner is advised that the Veteran is competent to describe the in-service injury, and his credibility is to be presumed in the context of providing the nexus opinion. In addition, the examiner is advised that they must not rely solely on the absence of documentation of the 12-foot fall or related symptoms in service in providing a negative nexus opinion, as some of the Veteran's service treatment records are missing. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.