Citation Nr: 21013462 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-44 711 DATE: March 9, 2021 REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. Entitlement to service connection for a bilateral foot disorder is remanded. Entitlement to a rating higher than 10 percent for eczema/dermatitis on the hands, forearms, and thighs is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to December 1977. The issues on appeal were previously before the Board in October 2018 when they were remanded to the agency of original jurisdiction (AOJ) for further development. As will be explained, however, remand is once again necessary as the evidence of record is insufficient to adjudicate the issues on appeal. 1. Service Connection for a Psychiatric Disorder As noted in the October 2018 remand, the Veteran claims entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as a direct result of his military service. Specifically, he wrote in June 2013 that he had been unfairly arrested in service and tried for marijuana possession, but was found innocent. He wrote that this trauma has never left him and that he still has flashbacks to the incident. The Veteran’s VA treatment records also indicate that his psychiatric disorder may be secondary to his chronic pain. The Veteran underwent a VA examination in October 2019, and the examiner concluded that he did not meet the diagnostic criteria for PTSD under the DSM-5, but that he did meet the criteria for major depression disorder. The examiner noted that, according to his treatment records, there was no history of psychiatric illness prior to his work-related stress while working at the post office. The examiner also noted that, despite the Veteran’s denial during the interview, his VA treatment records alluded to a history of childhood trauma, including physical abuse by his biological father. The examiner then opined that the Veteran’s current depressive symptoms appeared to be developmentally based features of PTSD, and that they were tied to marital distress and work-related injuries following his military service. The examiner stated that his military stressors did not play a prominent role in his psychiatric treatment record despite his reports during the examination. Later in the examination report, however, the examiner opined that the Veteran’s major depression was at least as likely as not related to his military service given his narrative of feared imprisonment, bullying by a higher ranking officer, and reported observation of a friend dying during training. Finally, as to whether his psychiatric problems were secondary to his service-connected disabilities and/or chronic pain, the examiner noted that the Veteran did not indicate these problems as significant stressors, and no in-service treatment records were found to substantiate this contention. Unfortunately, the Board finds that the October 2019 opinion is insufficient to adjudicate the Veteran’s claim for service connection for an acquired psychiatric for a number of reasons. First, it is internally inconsistent, as the examiner noted that his psychiatric problems were related to his post-service work related-injuries, but then later stated that his major depression was related to his reported in-service experiences. Furthermore, the opinion fails to provide a clear conclusion with supporting rationale explaining whether the Veteran’s psychiatric problems are secondary to his service-connected disabilities. Finally, as will be discussed in greater detail below, the evidence of record has raised the issue of whether the Veteran was sound upon entrance into active duty, and the opinion fails to address the necessary inquiries. As noted by the October 2019 VA examiner, the Veteran’s VA treatment records indicate that his psychiatric problems may have preexisted his military service. For example, a March 2019 VA treatment record noted that his depression was partly due to a world view that was formed in childhood and heavily reinforced and consistent with childhood onset PTSD, where distrust and negativity have led to anger and irritability, intermittent poor sleep, lack of feelings of closeness, and a higher need for control. Thus, the evidence of record has raised the issue of whether the Veteran was sound upon entrance into his active duty service. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2018). To rebut the presumption of sound condition, the VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, the Veteran’s December 1974 entrance examination is silent for any psychiatric diagnoses. Thus, he is presumed to have been sound upon entrance in January 1975. In order to demonstrate that the condition clearly and unmistakably preexisted service and was not aggravated by service, the evidence must be undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). Given the fact that the Veteran is entitled to the presumption of soundness, and because the medical opinions do not adequately address whether any acquired psychiatric disorder clearly and unmistakably existed prior to service and was not aggravated by service, the record does not include sufficient medical information to determine whether the presumption of soundness has been rebutted, or whether the record otherwise presents a basis for an award of service connection. Thus, to ensure due process, a remand is necessary so that an adequate VA examination and opinion can be obtained. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). 2. Service Connection for a Bilateral Foot Disorder In May 2012, the Veteran submitted a claim of entitlement to service connection for a bilateral foot tissue condition with osteoarthritis. He wrote in November 2015 that in service he ran three miles a day barefoot for martial arts training to toughen his feet and that he now has problems with balance and gait. He also wrote that service connection is warranted for a rash on his feet and that he has experienced continued problems with his feet ever since service. In the October 2018 remand, the Board determined that a February 2013 VA examination report was insufficient to adjudicate the claim for service connection as the examiner did not properly address the Veteran’s contention that the extensive physical training in service caused serious foot pain which he believes eventually developed into his current osteoarthritis of the feet. The Board also noted that there appeared to be outstanding VA treatment records that were potentially pertinent to the Veteran’s claim that needed to be associated with the claims file, including April 2011 and October 2011 podiatry consultations. Thereafter, the AOJ obtained update VA treatment records; however, the April 2011 and October 2011 podiatry outpatient consultations were not amongst those records. The Board notes that April 2011 and October 2011 VA treatment records indicate that the April 2011 and October 2011 podiatry outpatient consultations were scanned, and that they were viewable through Vista Imaging. The Board does not have access to records located in Vista Imaging. Because the VA treatment records currently associated with the claims file still appear to be incomplete, see Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession), and to ensure substantial compliance with the terms of the October 2018 remand, see Stegall v. West, 11 Vet. App. 268, 271 (1998), efforts must be made to obtain the records identified in the October 2018 remand. Furthermore, although the Veteran underwent a VA examination in October 2019, the opinion provided is once again insufficient to adjudicate the claim on appeal. Specifically, despite the Board’s instruction in the October 2018 remand, the October 2019 examiner did not consider the Veteran’s assertions that he had continuing problems with skin infections on his feet ever since service and that he ran many miles in service barefoot, which he argues caused severe foot pain which has been ongoing since service. Instead, the examiner indicated that the Veteran denied in-service bilateral foot problems, and that it was more likely than not that his current bilateral foot problems were related to a post-service injury in 1986. As such, the Board finds that the October 2019 VA examination report does not substantially comply with the October 2018 remand. To ensure substantial compliance with the October 2018 remand directives, and to ensure that any opinion is based on an adequate consideration of his lay statements, the Veteran should be afforded a new VA examination. See Barr, supra. 3. Increased Rating for Service-Connected Eczema/Dermatitis on the Hands, Forearms, and Thighs In light of the holding in Burton v. Wilkie, 30 Vet. App. 286 (2018), the Board remanded the Veteran’s claim for an increased rating for his service-connected eczema/dermatitis on the hands, forearms, and thighs in October 2018 to obtain a VA medical opinion that addressed whether his use of Elidel cream, tar shampoo, and/or Lubriderm constituted systemic therapy (operated by affecting the body as a whole in treating his skin condition), and whether those treatments were like a corticosteroid or other immunosuppressive drug. The Veteran underwent a VA examination in October 2019, and a medical opinion was obtained in June 2020 that thoroughly addressed whether the Veteran’s use of Elidel cream, tar shampoo, and/or Lubriderm constituted systemic therapy (operated by affecting the body as a whole in treating his skin condition), and whether those treatments were like a corticosteroid or other immunosuppressive drug. Following the June 2020 supplemental statement of the case, however, the Veteran indicated that he used 10 milligrams of cetirizine to treat itching, in addition to medications discussed above. To ensure an adequate record upon which to decide the Veteran’s claim, another addendum opinion is necessary to address whether the Veteran’s use of cetirizine 1) is used to treat his service-connected eczema/dermatitis on the hands, forearms, and thighs; 2) if so, whether such constitutes a systemic therapy (operated by affecting the body as a whole in treating his skin condition); and 3) whether such is like a corticosteroid or other immunosuppressive drug. On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through June 2, 2020, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, to include the April and October 2011 podiatry consultations which appear to be viewable through VistA Imaging. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination in order to determine whether any psychiatric disorder is related to his military service, or secondary to his service-connected disabilities and/or the pain associated with his bilateral foot disorders. The record must be made available to, and reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted, and the examiner should take a history from the Veteran as to the onset and progression of his claimed disability. An explanation for all opinions expressed must be provided. (a) First, the examiner must identify all current psychiatric diagnoses. If the diagnoses of PTSD, depression, and anxiety, are not provided, the prior diagnoses must be addressed. (b) For each currently diagnosed psychiatric disorder, did such disorder clearly and unmistakably preexist the Veteran’s period of active duty service? - If so, is there clear and unmistakable evidence that such was not aggravated by his period of active duty service? (c) If any identified psychiatric disorder did not clearly and unmistakably preexist the Veteran’s period of active duty service, is it at least as likely as not that such is related to his active service, to include his June 2013 report of being unfairly arrested in service and tried for marijuana possession; being bullied by a higher ranking officer; and/or watching a friend dying during training? (d) If any identified psychiatric disorder is not related to the Veteran’s military service, is it at least as likely as not (a 50 percent or higher probability) that such was caused by or related to his service-connected eczema dermatitis or the pain associated with his bilateral foot disorders? (e) If not, is it at least as likely as not (a 50 percent or higher probability) that any identified psychiatric disorder was aggravated by his service-connected eczema dermatitis or the pain associated with his bilateral foot disorders? The examiner should consider the Veteran’s lay statements regarding the onset of his psychiatric symptoms in service, and the opinion must reflect consideration of the Veteran’s reports as to his history and symptomatology. If the examiner chooses to reject his reports, the examiner must provide a reason for doing so, and his lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his foot disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the osteoarthritis, dermatitis, and tinea pedis had onset in, or are otherwise related to, active military service, to include his assertions that he had continuing problems with skin infections on his feet ever since service and that he ran many miles in service barefoot, which he argues caused severe foot pain which has been ongoing since service? The examiner should consider the Veteran’s lay statements regarding the onset of his bilateral foot symptoms in service, and the opinion must reflect consideration of the Veteran’s reports as to his history and symptomatology. If the examiner chooses to reject his reports, the examiner must provide a reason for doing so, and his lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. 5. After all outstanding records have been associated with the claims file, obtain an addendum opinion from the June 2020 VA examiner, if possible. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner should discuss all of the medications that the Veteran has taken for treatment of his eczema dermatitis other than Elidel cream, tar shampoo, and Lubriderm, but to include cetirizine, and the examiner should address whether such (1) is used to treat his service-connected eczema/dermatitis on the hands, forearms, and thighs; (2) if so, whether such constitutes a systemic therapy (operated by affecting the body as a whole in treating his skin condition); and (3) whether such is like a corticosteroid or other immunosuppressive drug. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.