Citation Nr: 21007191 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 13-26 533 DATE: February 8, 2021 ORDER 1. Entitlement to service connection for a skin disability is denied. REMANDED 2. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to in-service exposure to herbicides is remanded. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. 4. Entitlement to service connection for a right eye disability is remanded. 5. Entitlement to a rating in excess of 10 percent for left eye glaucoma is remanded. 6. Entitlement to a compensable rating for left testicle atrophy is remanded. 7. Entitlement to a compensable rating for bilateral hearing loss is remanded. 8. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that any skin disability the Veteran has is etiologically related to his active service. CONCLUSION OF LAW Service connection for a skin disability is not warranted. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty with the United States Air Force from September 1969 to September 1973, including overseas on Okinawa. He had additional service in the West Virginia Air National Guard. In June 2014, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In May 2016, the issues on appeal were remanded for additional development. Entitlement to service connection for a skin disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). Certain listed diseases are deemed associated with herbicide exposure, and may be presumed to be service connected if manifested in a Veteran who was exposed to herbicide agents in service. 38 U.S.C. § 1116. The listed diseases include porphyria cutanea tarda (PCT) and chloracne or other acneform disease consistent with chloracne. 38 C.F.R. § 3.309(e). If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for an herbicide-related diseased under 38 C.F.R. § 3.309 (e) to apply. . However, if exposure to herbicides is established, the presumption of service connection is applicable. Here, the Veteran contends that he has a skin disability that is etiologically related to exposure to herbicides during active military service in Okinawa, Japan. Turning to the evidence, the Veteran’s service treatment records (STRs) are associated with the claims file and are silent for complaints of or treatment for a skin condition during active service. The Veteran’s May 1973 separation examination notes that the Veteran experienced a generalized rash as a result of an allergic reaction to ampicillin that he took during hospitalization for epididymitis in January 1970. However, there is otherwise no mention of a skin condition, and the Veteran’s skin was normal on examination at separation. Subsequent reports of medical examination related to the Veteran’s service in the West Virginia Air National Guard show normal skin and are negative for history of skin diseases. A February 2013 private medical treatment record shows the Veteran sought evaluation for several lesions involving his face, trunk, and extremities. The evaluating physician observed several scaling, erythematous plaques involving the forehead and cheeks, as well as several pigmented nodules and hyperpigmented macules involving the face, chest, back, arms, and legs. The physician assessed the Veteran with actinic keratosis, dermal nevi, compound nevi, and seborrheic keratosis. VA treatment records include notes from February 2013 that indicate the Veteran saw a private dermatologist for a facial skin rash. A May 2013 Agent Orange program note indicates the Veteran exhibited no skin lesions suggestive of chloracne or PCT. VA treatment records are otherwise silent for complaints of or treatment for a skin condition and generally show the Veteran’s skin to be within normal limits. During his June 2014 Board hearing, the Veteran testified that he did not have any skin problems during active service. He testified that he was not diagnosed with his current skin conditions until around 2010. Although (as explained in the remand below) development to determine whether the Veteran was exposed to herbicide agents in service has so far been incomplete, completion of such development prior to appellate consideration of the instant claim is not necessary. As explained further below, because he is not shown to have a diagnosis of a skin disease listed in 38 C.F.R. §3.309(e), the presumptive provisions of 38 U.S.C. §1116 would not apply, even if exposure to herbicide agents is established, and affirmative evidence of a nexus between a currently diagnosed skin disability and disease, injury, or event (to include environmental exposures) in service is necessary to substantiate the claim. Upon careful review of the record, the Board finds that the preponderance of the evidence is against the instant claim of entitlement to service connection for a skin disability. Although the evidence suggests the Veteran has a current skin disability, including actinic keratosis, dermal nevi, compound nevi, and seborrheic keratosis, none of these skin conditions is listed as a disease associated with exposure to herbicide agents in 38 C.F.R. § 3.309 (e). A May 2013 Agent Orange program note indicates the Veteran exhibited no skin lesions suggestive of chloracne or PCT, the two skin disease listed in 38 C.F.R. § 3.309 (e). Consequently, his currently diagnosed skin disabilities may not be presumed to be service-connected under 38 U.S.C. § 1116. That the Veteran is not entitled to a presumption of service connection for a current skin disability under 38 U.S.C. § 1116, does not preclude him from establishing service connection for a skin disability under a due to exposure to Agent Orange, or some other, theory of entitlement. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). The Veteran has not asserted any other theory of entitlement for service connection other than presumptive service connection based on exposure to herbicide agents. The evidence of record does not show or suggest, nor has the Veteran contended, that a current skin disability was present in service. Aside from a single notation of a rash associated with an allergic reaction to ampicillin, his service treatment records (STRs) are silent for complaints of, or treatment for, a skin condition, and his skin was normal on clinical evaluation on May 1973 service discharge examination. Subsequent reports of medical examinations related to the Veteran’s service in the West Virginia Air National Guard show normal skin and are negative for a history of skin diseases. At the June 2014 Board hearing, the Veteran testified that he did not have a diagnosis of a current skin disability until around 2010, decades after discharge from active service. The Board acknowledges that the Veteran has not been afforded a VA skin examination in connection with this claim. VA is obligated to obtain a VA medical examination or opinion, where there is (1) evidence of a current disability, (2) evidence of an event, injury, or disease in service, and (3) an indication that there may be a connection between the two. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, although there is evidence of a current disability, the evidence does not show indication that there may be a connection between a current skin disability and an event, injury, or disease in service. The Veteran has not presented any such evidence, and a nexus to service of a currently diagnosed skin disability is not suggested in any medical evidence in the claims file. Considering the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s for service connection for a skin disability, and that the appeal in this matter must be denied. REASONS FOR REMAND Regrettably, for the reasons discussed below, the remaining issues on appeal must be remanded for additional development. In its May 2016 remand instructions, the Board instructed the Agency of Original Jurisdiction (AOJ) to secure for the record from the Social Security Administration (SSA) a copy of the disability determination and decision and copies of all medical records considered in connection with the Veteran’s award of SSA disability benefits. An August 2017 reply from the SSA National Records Center indicates the Veteran’s medical records (emphasis added) were destroyed. However, a Deferred Rating associated with the claims file shortly thereafter indicates the AOJ’s SSA records specialist advised that a copy of the Veteran’s SSA disability determination and decision may be obtained by written request to the Social Security office. There is no indication such a request was made. As the Board is unable to find that the SSA determination would not contain information relevant to the remaining matters (the Board has found that the determination would not include evidence regarding a nexus between a current skin disability and service), a remand to obtain a copy of the Veteran’s SSA disability determination and decision is necessary. The Board also requested that the AOJ arrange for Joint Services Records Research Center (JSRRC) verification of the Veteran’s alleged exposure to herbicides in service. An August 2017 AOJ letter asked the Veteran to provide specific details of his herbicide exposure, including unit of assignment, the circumstances surrounding his exposure, and the date the claimed exposure occurred. In September 2017, he submitted a response with the requested details. The Board notes that the information he provided is consistent with previous statements he has made concerning his alleged exposure. An October 2017 email acknowledged the information provided by the Veteran but stated, without explanation, that the information did not include sufficient information for a JSRRC request. A May 2018 formal finding of unavailability states that the RO “has given the claimant the opportunity to provide the missing information” but notes, “[w]e have determined that the VA lacks the information the JSRRC requires to verify herbicide exposure in Okinawa[.]” The memorandum did not explain what specific information necessary for JSRRC verification was missing or why the information the Veteran provided was insufficient. VA has a duty to assist the Veteran in obtaining records in the custody of a federal agency until such a search becomes futile. See, e.g., 38 C.F.R. § 3.159 (c)(2). Here, the Veteran provided the information requested of him—his unit of assignment, the circumstances surrounding his exposure, and the date the claimed exposure occurred. The AOJ offered no explanation for why this information was insufficient for a request for verification from the JSRRC. Therefore, remand is necessary for the AOJ to consider the information provided by the Veteran, and if warranted, submit the matter of alleged exposure to Agent Orange on Okinawa to the JSRRC for verification (and if the information remains deemed insufficient advise the Veteran what specific additional information is necessary and afford him opportunity to submit it). Further development is also warranted for the issues listed below: Entitlement to service connection for PTSD In its May 2016 remand instructions, the board directed the AOJ to arrange for the Veteran to be scheduled for a psychiatric examination to determine the nature and etiology of his variously diagnosed psychiatric disability. On May 2017 VA PTSD examination, PTSD was diagnosed but the examiner did not provide an opinion regarding its etiology, as the Board remand instructions requested. Therefore, a remand for a medical opinion regarding the etiology of the Veteran’s currently diagnosed PTSD (whether due to a corroborated stressor event in service, and if not, the etiology that is considered to be more likely) is necessary. Entitlement to a compensable disability rating for left testicle atrophy The Veteran seeks a compensable rating for his service-connected left testicle atrophy, which he states results in significant groin pain that radiates to his lower back. In accordance with the Board’s May 2016 remand instructions, he was afforded a VA male reproductive system conditions examination in May 2017. He reported progressively worsening pain that rendered him unable to lift or squat or bend or sit for longer than two hours. He reported longstanding pain with ejaculation and intercourse, as well as tension of the right testicle all the way up to the right groin area. He reported experiencing constant pain at a level 5 (on a 10-point scale), which increased to level 8 if irritated. The examiner wrote that during the examination, the Veteran exhibited “evident discomfort” sitting for an extended period and had to “shift positioning” in the examination room during the interview. Regarding the Veteran’s chronic groin and lower back pain, the examiner concluded, “it can be determined that the orchalgia is at least as likely as not . . . part and parcel of his service-connected left testicle atrophy.” The examiner further wrote, “I do not believe this is a separate disability entity, but that his pain is moderate to severe with more consistency which could be a progression of the condition.” An August 2020 addendum opinion by a different clinician appears to directly contravene the May 2017 examiner’s findings: “An atrophic testicle has little or no innervation . . . . In my professional medical opinion I do not believe this entity could result [i]n [contralateral] i.e. right scrotal pain or chronic groin and lower back pain. This is a separate and distinct disability. The veteran’s groin and lower back pain is less likely than 50% probability related to the left testicular atrophy.” The examiner offered no rationale to support this conclusion. The Board is unable to reconcile these conflicting opinions without further medical guidance. This is particularly significant because the evidence suggests that the Veteran may be experiencing significant pain and functional impairment due to his left testicle disability. And if the progressive pain [and related functional impairment] is indeed part and parcel of the service-connected left testicle disability, referral for consideration of an extraschedular disability rating may be warranted. If the pain is a separate and distinct disability, an adequate opinion regarding its etiology, to include whether it was caused or aggravated by the service-connected left testicle atrophy, would be necessary. Entitlement to a TDIU rating The Board finds that final adjudication of the other remanded claims may impact on the decision on the claim tor a total disability rating; therefore, the claim for a TDIU rating is inextricably intertwined with the other remanded claims on appeal. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following: 1. Obtain from SSA a copy of the Veteran’s disability determination and decision (medical records underlying the decision are established to have been destroyed), to include submitting a written request for such documents, if necessary. All efforts to obtain such records should be documented in the claims file. If the records are unavailable, the reason for their unavailability must be noted in the record, and the Veteran should be so advised. 2. Undertake all appropriate development procedures for verifying the Veteran’s allegations of exposure to herbicide agents while serving on Okinawa. If there is insufficient information to seek verification of the alleged exposures to herbicide to the JSRRC, identify what specific information from the Veteran is needed to enable a request for verification, advise him what specific additional information is needed, and afford him opportunity to respond. If the additional information sought is not received, the AOJ JSRRC coordinator should make a memorandum for the record explaining why the information submitted is insufficient for a JSRRC request. If the additional information necessary is received, proceed with the request for verification by the JSRRC. 3. Arrange for the Veteran’s claims file to be returned to the May 2017 VA examiner (if unavailable, to another appropriate psychiatrist or psychologist) for review and an opinion regarding the etiology of the PTSD then diagnosed. The opinion must identify the stressor event underlying the diagnosis (specifically whether it is a stressor event that is acknowledged to be corroborated-in this regard note the February 2013 memorandum, and if not identify the alternate stressor underlying the diagnosis) and the constellation of symptoms found supporting a diagnosis of PTSD in accordance with DSM-5. [If further examination of the Veteran is deemed necessary, such should be arranged. 4. Arrange for a VA medical opinion by an appropriate clinician (such as a urologist) regarding the nature and severity of the Veteran’s service-connected left testicle disability. [If further examination of the Veteran is deemed necessary for response to any opinion request below, such should be arranged.] The consulting provider should: (a) Opine whether the Veteran’s reportedly progressive chronic groin and lower back pain is part and parcel of his service-connected left testicle atrophy disability (reconciling the conflicting medical evidence already of record in this matter, discussed above) or is a separate and distinct disability (if it is a separate and distinct disability, the etiology of the disability must be identified, to specifically include whether it was caused or aggravated beyond its natural progression by the Veteran’s service-connected left testicle atrophy disability). In this regard, note that a recent precedential decision by the U.S. Court of Appeal for Veterans Claims (Ward v. Wilkie, 31 Vet. App. 233 (2019)) held that aggravation under 38 C.F.R. § 3.310 (b) does not require that there be “permanent” worsening of the nonservice connected disability. (b) If the progressive groin and low back pain is found to be “part and parcel” of the service-connected testicle atrophy disability, noting the findings reported on May 2017 VA examination, describe in detail all current related symptoms shown and all related functional impairment. (5) Readjudication of the testicle atrophy disability rating should include consideration whether referral for an extraschedular rating is indicated (if the overall record following development suggests there may be symptoms or impairment not encompassed by the schedular criteria) GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.