Citation Nr: 21007235 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-61 623 DATE: February 9, 2021 ORDER Entitlement to service connection for rosacea is denied. Entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD), to include anxiety and depression is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had rosacea at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that acquired psychiatric disabilities of anxiety and depression began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is for finding that the Veteran’s acquired psychiatric disability is secondary to his non-service-connected PTSD diagnosis. CONCLUSIONS OF LAW 1. The criteria for service connection for rosacea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disability other than PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 2011 until his honorable discharge in August 2014. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Lincoln, Nebraska Regional Office (RO) of the United States Department of Veterans Affairs (VA). In September 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Oakland, California. A transcript of the hearing has been associated with the record on appeal. In November 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to schedule the Veteran for an examination to determine the nature and etiology of his rosacea to obtain an addendum opinion regarding the etiology of the Veteran’s acquired psychiatric disability, other than PTSD, to include anxiety and depression. In response, in January 2020, the RO obtained an addendum opinion regarding the etiology of the Veteran’s acquired psychiatric disability, other than PTSD, to include anxiety and depression and in February 2020, the RO obtained an examination to determine the nature and etiology of his rosacea. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue(s) on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection 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). 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, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge 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). 1. Entitlement to service connection for rosacea The Veteran asserts that his rosacea began during service and has existed since that time. The Board finds that there is not a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was afforded a VA examination in February 2020. The February 2020 VA examiner found that the Veteran did not have a diagnosis of any skin condition. See February 2020 VA examination, p. 2. The Veteran reported to the VA examiner that the he had rosacea in 2014 and had been treated by his primary care provider at the Santa Rosa VAMC and it has resolved. See February 2020 VA examination, p. 3. In the absence of a disability during the pendency of the claim, service connection cannot be established. See Brammer v. Derwinski, 2 Vet. App. 223 (1992). There is also insufficient evidence of a disability at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, entitlement to service connection is denied. At the core of service connection is functional impairment, which can be a disability even if there is no underlying diagnosis. Consideration should be given to the impact of functional limitation. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here there is no assertion of functional limitation due to rosacea. As noted above, the Veteran testified before the undersigned VLJ in September 2019. During the September 2019 Board testimony, the Veteran testified that he believes his rosacea started during service and has continued since that time and that he believes it has been caused by the annual gas chamber training that he underwent in the United States Marine Corps and that it is now permanent. The Board notes that the Veteran’s report to the February 2020 VA examiner that his rosacea resolved after treatment in 2014 compared to the Veteran’s Board testimony are inconsistent. The Veteran’s inconsistent statements included within the Veteran’s Board hearing testimony and VA examination compel the Board to find that the Veteran’s statements are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). To be clear, the Board is not questioning the Veteran’s honesty or moral character. The Veteran is attempting to recollect events that transpired a long time ago, and the passage of time, along with the inconsistencies noted above, compels a conclusion that the Veteran is not an accurate historian as to these particular statements. See Caluza, 7 Vet. App. at 510-11. Therefore, the Board cannot assign them probative weight. Id. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for an acquired psychiatric disability, other than PTSD, to include anxiety and depression The Veteran asserts that his acquired psychiatric disability began during service and has existed since that time. As a preliminary matter, the November 2019 Board decision denied the Veteran’s claim for PTSD because the preponderance of the evidence is against finding of an in-service incurrence of PTSD as due to MST and therefore the second element of service connection has not been met, and an award of service connection was not warranted. See Holton, supra. However, because the September 2015 VA examiner diagnosed the Veteran with major depressive disorder, recurrent, moderate (Anxiety disorder) and did not provide a nexus opinion for those disabilities, it was remanded to the RO for an addendum opinion. The issue has been returned to the Board for adjudication. To be clear, the Board is not revisiting the issue of entitlement to service connection for PTSD and the November 2019 Board decision that denied entitlement to service connection for PTSD is final. The Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran is diagnosed with PTSD with anxiety and depression as a subset of his diagnosed PTSD and not a separate diagnosis. Second, the Board finds that there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The record does not reflect an in-service onset of an acquired psychiatric disability. The Veteran’s STRs, entrance examination, and separation examination reflect normal clinical evaluation with no complaints of an acquired psychiatric disability. The Board notes that the Veteran has provided statements from his father and brother concerning his diagnosis of PTSD and requesting reconsideration of the prior final decision. However, as the issue of PTSD is not on appeal and the Board finds the statements not material to the issue on appeal. As noted in the November 2019 Board decision, the Veteran was afforded a VA examination in August 2015 and during the examination, he reported chronic sexual abuse, emotional abuse, and neglect issues by his biological mother all throughout his childhood and that his mother died when he was 17 years old. However, there was no mention of any in-service psychiatric events or injuries during the August 2015 VA examination. Furthermore, there is no credible supporting evidence to support the Veteran’s assertions. The Veteran’s inconsistent statements concerning his history of military sexual trauma included within the Veteran’s correspondence, his demeanor during the Board hearing testimony, VA treatment records, and VA examinations compel the Board to find that the Veteran’s testimony was not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Finally, the January 2020 VA examiner opined that the Veteran’s anxiety and depression are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because they do not warrant a separate diagnosis but are instead a subset of the Veteran’s PTSD and there is no diagnosis other than PTSD (which was denied in the November 2019 Board decision). Accordingly, entitlement to service connection for an acquired psychiatric disability is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.