Citation Nr: 21007186 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-45 406 DATE: February 8, 2021 ORDER Entitlement to service connection for a skin disability, including psoriasis, is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a respiratory disability is denied. REMANDED Entitlement to service connection for a psychiatric disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s psoriasis manifested during service or is otherwise related to his active service. 2. The preponderance of the evidence is against a finding that the Veteran’s back pain manifested during service or is otherwise related to his active service. 3. The preponderance of the evidence is against a finding that the Veteran’s bilateral knee strain manifested during service or is otherwise related to his active service. 4. The Veteran has not had a chronic respiratory disability manifested by shortness of breath during any time from contemporaneous to when he filed his claim to the present. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disability, including psoriasis, have not been met. 38 U.S.C. §§ 1110, 1112, 1131,1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131,1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 3. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131,1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 4. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131,1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from January 1961 to November 1964. This appeal comes to the Board of Veterans’ Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). In January 2020, the Board remanded the appeal for further evidentiary development. The case has now been returned to the Board for further appellate action. 1. Entitlement to service connection for a skin disability is denied. The Veteran asserts that his psoriasis first began during active duty and progressively worsened since then. Service treatment records (STRs) are negative for complaints of, or treatment for the Veteran’s skin. On November 1964 separation examination, clinical evaluation of the skin was normal. Post-service, the Veteran submitted a claim for psoriasis in February 2015. In April 2015, the Veteran submitted photographs of his skin showing various scales and lesions all over his body. In May 2015, the Veteran underwent a VA skin diseases examination. The Veteran reported trying over-the-counter preparations and not seeing anyone for his condition due to the price of healthcare. He reported that he was seen for this condition in the 1990s at the VA, but states that he was told there was not enough money in the budget to keep treating his skin condition. Following examination of the skin, the examiner diagnosed eczema and opined that the Veteran’s eczema was less likely than not incurred in or caused by service, citing a lack of documentation during and since service. In July 2015, the Veteran presented to VA for a dermatology consultation. He reported that he first got psoriasis when he was in the Navy in his 20s. It started on the scalp and then spread to his elbows, knees, and entire body. When he was in his 60s, he had private insurance and received Embrel for a couple of months. He had complete clearance with Embrel. However, when he turned 65, he went on Medicare and he could not afford Embrel. He has used over-the-counter coal tar soaps and shampoos, salicylic acid shampoos, etc. Following an examination, the examiner diagnosed plaque psoriasis. At a March 2020 VA skin diseases examination, the Veteran reported that in 1962 he went to sick bay for bad dandruff. Symptoms continued and evolved to the point where he had it “all over.” The examiner rendered a negative etiological opinion, reasoning that despite a current diagnosis of psoriasis, the record does not mention this diagnosis during service nor that the Veteran sought treatment. Based on the foregoing, the Board finds that service connection for psoriasis is not warranted. Although the record reflects a current diagnosis of psoriasis, the weight of the competent, most probative evidence does not support a finding that there exists a medical nexus between any such disability and his military service. As noted above, STRs are silent for complaints regarding the skin. Moreover, the first indication of psoriasis in the record is his February 2015 claim for compensation, approximately 50 years after discharge from active duty. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Finally, there is no competent medical evidence linking his psoriasis to active service. The Board has also considered the Veteran’s statements, including those at the October 2019 Board hearing, that his psoriasis is related to service. However, whether the Veteran’s psoriasis is related to his active military service is a complex medical question, and is not within the knowledge of a lay person or determinable by observation with one’s senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the preponderance of the evidence is against a finding of service connection for psoriasis. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b) (2018), 38 C.F.R. § 3.102 (2019). 2. Entitlement to service connection for a back disability is denied. The Veteran asserts he has a back related to active duty. Specifically, he carried heavy loads during service and noticed soreness. STRs are negative for complaints of, or treatment for the Veteran’s back. On November 1964 separation examination, clinical evaluation of the spine was normal. Post-service, the Veteran submitted a claim for a back disability in February 2015. A July 2017 VA treatment record noted that the Veteran complained of chronic low back pain. He did not endorse inflammatory symptoms, such as stiffness. The examiner offered physical therapy for the back, but the Veteran refused as he felt he needed to lose weight and would start exercising. The examiner agreed with the Veteran’s plan and encouraged him to exercise daily. At a March 2020 VA back examination, the Veteran reported that his back disability began in 1964 when he noted pain in lower back with bending forward. The course of the condition had continued since its onset. Currently, the Veteran experienced intermittent pain if he stressed his back. He had difficulty picking things off the floor. Treatment included aspirin and Tylenol. On range of motion testing, forward flexion was limited to 75 degrees. However, the examiner opined that this range was normal for the Veteran because of his large abdomen. No pain was noted during range of motion testing, with weight-bearing, or on palpation. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The examiner opined that pain would limit functional ability with repeated use over a period of time. There was no muscle spasm or guarding of the spine. Muscle strength and reflex examinations were normal. The Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. The examiner opined that there is no objective evidence for which a diagnosis can be made, therefore a service connection opinion cannot be made. Based on the foregoing, the Board finds that service connection for a back disability is not warranted. As noted above, STRs are silent for complaints regarding the back. Moreover, the first indication of a back disability in the record is his February 2015 claim for compensation, approximately 50 years after discharge from active duty. Maxson, 230 F.3d at 1330. Finally, there is no competent medical evidence linking his reported back pain to active service. The Board has also considered the Veteran’s statements, including those at the October 2019 Board hearing, that his back pain is related to service. However, whether the Veteran’s back pain is related to his active military service is a complex medical question, and is not within the knowledge of a lay person or determinable by observation with one’s senses. Davidson, 581 F.3d at 1313. As such, the preponderance of the evidence is against a finding of service connection for a back disability. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. 3. Entitlement to service connection for a bilateral knee disability is denied. The Veteran asserts that he has a bilateral knee disability related to active duty. He testified that he banged his knees up while going down ladders in tight spaces. Currently, he states cannot kneel down without a pad. STRs are negative for complaints of, or treatment for the Veteran’s knees. On November 1964 separation examination, clinical evaluation of the lower extremities was normal. Post-service, the Veteran submitted a claim for a bilateral knee disability in February 2015. A July 2017 VA treatment record noted that the Veteran complained of pain in the knees for over 20 years after activity. The joints were mostly painful with no swelling. He had morning stiffness lasting about five minutes. The examiner noted that his joint symptoms were consistent with mechanical joint pain due to osteoarthritis. The examiner recommended Tylenol and NSAIDs. On March 2020 VA knee examination, the Veteran reported an onset of knee pain in service after battering his knees on a ship. He climbed ladders on a battleship and would hit his knee on the metal. The Veteran reported that the pain had progressed since service. He now had chronic bilateral knee pain and was unable to squat. Treatment included aspirin and Tylenol. On physical examination, range of motion testing of both knees was normal. There was evidence of localized tenderness or pain on palpation of the inferior patellar tendon. The severity was mild. There was objective evidence of crepitus. Joint stability testing was normal. The examiner diagnosed bilateral knee strain, and opined that the knee strain was less likely than not related to the Veteran’s service. The examiner reasoned that the record does not mention this diagnosis during service nor that the Veteran sought treatment for this condition. Based on the foregoing, the Board finds that service connection for a back disability is not warranted. As noted above, STRs are silent for complaints regarding the knees. Moreover, the first indication of a knee disability in the record is his February 2015 claim for compensation, approximately 50 years after discharge from active duty. Maxson, 230 F.3d at 1330. Finally, there is no competent medical evidence linking his reported knee pain to active service. The Board has also considered the Veteran’s statements, including those at the October 2019 Board hearing, that his knee strain is related to service. However, whether the Veteran’s knee strain is related to his active military service is a complex medical question, and is not within the knowledge of a lay person or determinable by observation with one’s senses. Davidson, 581 F.3d at 1313. As such, the preponderance of the evidence is against a finding of service connection for a bilateral knee disability. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. 4. Entitlement to service connection for a respiratory disability is denied. The Veteran asserts that he has a respiratory disability related to breathing in asbestos and paint fumes while aboard a naval ship during active duty. STRs reflect that the Veteran complained of sore throat with body aches and pains in June 1964. The Veteran’s temperature was 101.8 degrees. On November 1964 separation examination, clinical evaluation of the lungs and chest was normal. Post-service, the Veteran submitted a claim for an upper respiratory disability in February 2015. On March 2020 respiratory conditions examination, the Veteran reported shortness of breath began while in the military. The course of the condition since onset had continued. Currently, the Veteran became short of breath while walking on an incline at times. He would need to stop and rest. He denied any treatment, medications, or surgery. Following pulmonary function testing (PFT) and a chest x-ray, the examiner opined that the Veteran did not have a diagnosis of chronic respiratory disease. The examiner noted that given his age and body size, the results of his PFT’s are unremarkable. The Board concludes that the Veteran does not have a current disability manifested by shortness of breath and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). The Board has considered the Veteran’s assertions that he has a chronic disability manifested by shortness of breath that is related to his time in service. Although the Veteran is competent to report such symptoms as shortness of breath, the evidence does not establish that the Veteran has expertise in diagnosing a medical condition. He is thus considered a non-expert, or a layperson. Whether the diagnosis of a layperson is competent evidence depends on the facts of the case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, whether the Veteran has a disability manifested by shortness of breath due to disease or injury is a complex question. The March 2020 VA examiner, in considering the record, interview of the Veteran, and testing, determined that the Veteran’s reported shortness of breath is not attributable to a respiratory disability. This opinion is consistent with the evidence of record failing to show treatment for any respiratory disability. The Board finds that, in light of the fact that the evidence fails to establish that the Veteran has, at any point during the pendency of his claim or contemporaneous to when he filed his claim, been treated for or diagnosed with a disability manifested by shortness of breath, the claim of service connection for a disability manifested by shortness of breath must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that it is the responsibility of VA to consider alternate current conditions within the scope of the claim). REASONS FOR REMAND Entitlement to service connection for a psychiatric disability is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for psychiatric disability. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its January 2020 Remand, the Board instructed the AOJ to obtain the deck logs for the U.S.S. Grand Canyon to verify his reported stressor/s. A February 2020 correspondence from the National Archives and Records Adminstration (NARA) noted that the deck logs were temporarily unavailable because the VA was digitizing the Vietnam era US Navy Deck logs, a project that was expected to be completed by February 29, 2020. No subsequent attempts to obtain those records have been made. Consequently, on remand the AOJ must again contact NARA to obtain such deck logs. Finally, the Board notes that the March 2020 VA psychiatric examiner opined that the Veteran did not have a psychiatric diagnosis. However, a March 2015 VA psychological assessment includes a DSM-5 diagnosis of PTSD. Other VA treatment records note a history of anxiety. The March 2020 VA examiner failed to comment on these records. Consequently, after the deck logs are associated with the claims file, the AOJ must obtain an addendum opinion. The matter is REMANDED for the following action: 1. Obtain the complete deck logs for the U.S.S. Grand Canyon from January 1964 to November 1964. 2. Then, obtain an addendum opinion from the March 2020 VA psychiatric examiner. The examiner must note review of this remand, a March 2015 VA mental health record, and notations of anxiety in various VA treatment records. The examiner must then provide an etiological opinion as to whether it is at least as likely as not (50 percent probability or better) that any psychiatric disability diagnosed during the claim period is etiologically related to the Veteran’s active service. (Continued on the next page)   The rationale for all opinions expressed must be provided. 3. Then, readjudicate the remaining claim on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.