Citation Nr: 21010206 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-15 059 DATE: February 24, 2021 ORDER Service connection for dermatitis, also claimed as scars (scars) is denied. Service connection for an acquired psychiatric disability, to include depressive disorder and mood disorder (acquired psychiatric disability), and to include as secondary to service-connected bilateral hearing loss, is denied. REMANDED The service connection claim for right knee arthralgia (right knee disability) is remanded. The service connection claim for left knee arthralgia (left knee disability) is remanded. The service connection claim for chronic low back pain is remanded. The service connection claim for periodontal disease, claimed as loss of all teeth (dental disability) is remanded. FINDINGS OF FACT 1. The probative evidence has not shown that the Veteran currently has any knee scars. 2. The medical evidence has not shown that the Veteran is currently diagnosed with a psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for service connection for dermatitis, also claimed as scars (scars) have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303. 2. The criteria for service connection for an acquired psychiatric disability, to include depressive disorder and mood disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1954 to December 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. In February 2016, the Veteran testified at a personal hearing before a Decision Review Officer at the San Juan, Puerto Rico RO. A transcript of this hearing is of record. In August 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In November 2019, the Board remanded the case to the RO for further evidentiary development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Alternatively, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Thus, secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran asserts that his acquired psychiatric disability is secondary to his service-connected bilateral hearing loss. See e.g. February 2016 DRO Hearing; see also August 2019 Travel Board Hearing Transcript. He also asserts that he sustained burns to his knees as a result of an in-service injury in which a training grenade exploded near him. See e.g. August 2019 Travel Board Hearing Transcript. However, the medical evidence has not shown that the Veteran currently has scars or dermatitis in the knees, and/or a current diagnosis of a mental disability. See e.g. February 2020 VA Examination and Medical Opinion for Skin Diseases (noting that the medical opinion took the Veteran’s assertions and his mother’s letter about his in-service incident into opinion, but concluding that there is no evidence of any skin condition in the knee areas, nor residual scars in available files, nor this examination); see also February 2020 VA Examination and Medical Opinion on Mental Disorders (noting that the VA examiner was unable to render an opinion because there is no medical evidence of a current mental evaluation that fulfills any DSM-V diagnostic criteria in the claims file; and concluding that since there is no evidence of a mental illness at the present time, the presumptions of a mental disability are invalid). Thus, as the evidence has not shown current disabilities for an acquired psychiatric disability and/or knee dermatitis/scars, these service connection claims must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that “[in] the absence of proof of a present disability there can be no valid claim.”). REASONS FOR REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining issues on appeal. 1. Right & Left Knee Disabilities (Bilateral Knee Disabilities) and Back Disability The Veteran asserts entitlement to service connection for his back and bilateral knee disabilities. In support of his claim, he explained that he sustained injuries to his back and knees when a grenade exploded within a few feet away from him, and caused him to propel in the air for several feet. See e.g. February 2016 DRO Hearing; see also November 2019 Travel Board Hearing Transcript. An October 1996 private audiologic opinion, as well as a January 1955 letter from his mother, who discussed this incident, corroborate the Veteran’s account of the in-service incident. The Veteran was afforded a VA examination for the back and knees in February 2020. The VA examiner opined that the Veteran’s back disability was less likely than not (less than 50 percent probability) incurred in or caused by an in-service, injury, event or illness. As the rationale for this opinion, the VA examiner, in pertinent part, reasoned that STRs are silent for back injury or condition, and that the Veteran’s lumbar spine condition started years after his separation from service. The VA examiner also opined that the Veteran’s bilateral knee disability was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that Veteran military health record and lay statements are silent for orthopedic related knee injuries, and that the Veteran was diagnosed with bilateral knee arthritis since 2011. The Board notes that VA undertook a search to obtain all of his STRs and ultimately determined that some of his service personnel records, to include STRs, were lost in a 1973 fire. See e.g. October 2014 Response to Request for Medical/Dental Records; see also September 1973 Correspondence. Therefore, the VA examiner’s opinion is speculative as it presumes that the Veteran STRs are silent for back and/or knee related injuries, without an opportunity to review all of the Veteran’s STRs. Additionally, the VA examiner did not consider or account for all of the Veteran’s statements about the Veteran’s in-service injuries. Thus, these opinions are inadequate for determining these claims. Accordingly, a remand is required for a new opinion and an adequate rationale on the etiology of the Veteran’s back and knee disabilities. 2. Dental Disability In the November 2019 Board remand, the Board remanded the issue of service connection for a dental condition because it found that the no examiner has discussed the Veteran’s assertions that he developed a mouth infection due to dental treatment in service. Pertinently, the Board explained that although “the September 2015 VA examiner noted that the Veteran underwent dental extractions in service, the examiner did not discuss whether the Veteran suffered any trauma, including an infection, to his maxilla or mandible due to dental treatment in service.” Accordingly, this issue was remanded for an addendum opinion to determine the nature and etiology of the Veteran’s dental condition. Although the RO obtained another opinion in February 2020, the VA examiner provided an identical opinion to the September 2015 VA opinion, and thus, likewise, failed to discuss the Veteran’s assertions that he developed a mouth infection due to dental treatment in service; and whether the Veteran suffered any trauma, including an infection to his maxilla or mandible, due to dental treatment in service. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, this issue must be remanded for compliance with the November 2019 remand directives, and specifically, obtaining an adequate opinion on the etiology of the Veteran’s dental condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with a physician (VA examiner) to determine the etiology of his back and knee disabilities. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. For each of the back, right and left knee disabilities, opine whether it is at least as likely as not (50 percent probability or greater) that the pertinent disability is the result of an in-service injury, illness, disease, or event; and/or is otherwise related the Veteran’s active service. b. Since some of the Veteran’s STRs are available, consider all lay statements from the Veteran about onset and continuity of symptoms of back and knee conditions. The Board has not made a finding as to whether the lay statements is/are credible or not; thus, for purposes of this opinion, feel free to state whether you find any statements are medically consistent or inconsistent with other medical evidence of records or medical accepted principles. c. In rendering an opinion, determine whether the Veteran’s in-service accident is consistent with the symptoms and diagnoses of his current back and knee disabilities. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 2. Also, schedule the Veteran for a new VA examination with a dentist (VA examiner) who has not yet evaluated the Veteran, to determine the etiology of his dental condition. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffered any dental trauma, including an infection to his maxilla or mandible, due to dental treatment in service. a. The Board notes that some of the Veteran’s STRs are unavailable, as the RO has determined that they were lost in a fire. Therefore, in rendering an opinion, the VA examiner should consider the Veteran’s assertions that he developed an infection following dental treatment; he was hospitalized for a few weeks due to infection, and had approximately four to six teeth removed, following hospitalization. The Board has not made a finding as to whether the Veteran’s statement is credible or not; thus, for purposes of this opinion, feel free to state whether you find his statements are medically consistent or inconsistent with other medical evidence of records or medical principles. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.