Citation Nr: 21014267 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-04 063 DATE: March 11, 2021 ISSUE Entitlement to service connection for ichthyosis vulgaris. ORDER Entitlement to service connection for ichthyosis vulgaris is granted, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. Ichthyosis vulgaris was noted at the time of his acceptance and enrollment into active duty service. 2. The Veteran's pre-existing ichthyosis vulgaris underwent an increase in severity in service and is presumed to have been aggravated by service; the presumption of aggravation has not been rebutted by clear and unmistakable evidence. CONCLUSION OF LAW The criteria for entitlement to service connection for ichthyosis vulgaris have been met. 38 U.S.C. §§ 1131, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1966 to March 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified before the undersigned during a January 2018 travel Board hearing. A copy of the transcript is of record. This matter was previously before the Board in March 2018 and June 2020. In the March 2018 decision, the Board, in pertinent part, denied the Veteran’s claim on appeal, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2019 the Court issued an order that vacated the March 2018 Board decision and remanded the claims for compliance with a Joint Motion for Remand (JMR). See December 4, 2019 CAVC Order. In June 2020, the Board, in pertinent part, remanded the Veteran’s claim of entitlement to service connection for ichthyosis vulgaris for the purpose of obtaining an addendum medical opinion regarding the etiology of his claimed condition. Subsequently, the Veteran was provided a November 2020 VA Skin Disease examination and medical opinion. It is important to note that a copy of the November 2020 VA Skin Disease examination and medical opinion has not been provided to the Veteran or his attorney; however, as the Board grants in full the benefits sought by the Veteran in connection with this claim, he will not be prejudiced by the Board's proceeding to a decision on the merits at this time. The matter has been properly returned for appellate consideration and the Board is satisfied that there has been substantial compliance with the Board’s June 2020 remand. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for ichthyosis vulgaris. The Veteran claims that his skin condition pre-existed service and was aggravated by service. See January 27, 2014 Form 9. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. The law provides, "[E]very 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 (2012). Where a disorder is noted on service entrance examination, a Veteran is not presumed sound and 38 U.S.C. § 1153 applies. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012). In such cases, the evidence must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b) (2018). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition as contrasted to symptoms is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Accordingly, section 1153 requires an increase in the severity of the pre-existing condition, as distinguished from the mere recurrence of manifestations of the pre-service condition, and evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). However, if the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Discussion As an initial matter, ichthyosis vulgaris was noted at the time of the Veteran’s acceptance and enrollment into active duty service. The Veteran’s pre-induction physical notes a diagnosis of a skin condition on clinical evaluation. See February 28, 1966 Pre-Induction Physical, Item # 40 (Ichthyosis). As such, the presumption of soundness is not for application for this pre-existing disease. 38 C.F.R. § 3.304(b). However, as stated above, a pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during service. The question of whether a pre-existing defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches." Verdon v. Brown, 8 Vet. App. 529, 538 (1996). After such a showing, to rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a) and (b). Accordingly, the threshold inquiry for establishing service connection for a pre-existing disorder is whether the evidence establishes that there was an increase in the Veteran's ichthyosis during his active duty. After reviewing the record, the Board finds that the evidence establishes an increase in severity of the Veteran’s ichthyosis in service. A February 28, 1967 Medical Evaluation Board Report indicates that the Veteran’s is to be discharged from service because of his “Existed Prior To Service” (EPTS) condition. The report indicates a diagnosis of ichthyosis vulgaris. The report indicates that the Veteran’s condition is not service aggravated. See February 28, 1967 Medical Board Proceedings Report. The Veteran’s February 1967 Separation physical on clinical examination indicates that the Veteran’s skin condition is moderate-severe, unresponsive to treatment. See February 28, 1967 Report of Medical Examination, section 74 (summary of defects); See also, February 6, 1967 STR. Lay correspondence and testimony In January 2018 Correspondence, he Veteran stated that during service, his ichthyosis vulgaris skin condition flared-up in the military so severely that he was only able to serve 6 months before receiving an Honorable medical discharge. See January 25, 2018 Correspondence. The Veteran testified at his January 2018 Board Hearing that his pre-existing skin condition never got so bad as it did during service—and it continued much worse than before service. See January 2018 Board Hearing transcript, pgs. 19-20, 23-24. VA examinations and medical opinions The Veteran was afforded a VA Skin Diseases examination and Medical Opinion in December 2013 to determine the etiology of his ichthyosis. The examiner confirmed a diagnosis of ichthyosis. The examiner also confirmed that ichthyosis was noted before service. See December 30, 2013, Skin Diseases examination, pg. 2. The examiner noted that during this examination, the Veteran reported that he had this skin condition before he was drafted and that it got worse in service. The Veteran reported that his skin started to bleed during service. Id. at pg. 3. The examiner opined in a December 2013 medical opinion that the claimed ichthyosis condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by service. The examiner provided the following rationale for this opinion: The Veteran’s records showed that the Veteran had ichthyosis prior to service, and there was no documentation to support the chronicity of the aggravation of the ichthyosis condition. Private medical records showed that the Veteran was treated for this condition since 1989. The Veteran’s clinical examination today supports the diagnosis of Ichthyosis. Medical literature supports that ichthyosis vulgaris is a common genetic disorder that worsens in old age. The examiner concluded that the condition, which clearly and unmistakable existed prior to service, was not aggravated beyond its natural progression by the service. See December 30, 2013, Skin Diseases Examination and Medical Opinion, pgs. 7-8. The Board notes however that according to the December 2018 JMR, discussed in the introduction of this decision, the examiner’s statement that ichthyosis vulgaris was a common genetic disorder that worsened in old age did not rebut the presumption of aggravation. Hence, the Board finds that this December 2013 examination and medical opinion inadequate for adjudication purposes. Pursuant to the Board’s June 2020 Remand, the Veteran was afforded a November 2020 Skin Disease examination and medical opinion to opine on the etiology of this Veteran’s skin condition and specifically to determine whether the Veteran’s ichthyosis, which clearly and unmistakably existed before service, was not aggravated beyond its natural progression by service. In this November 2020 examination and medical opinion, the examiner noted review of the evidence of record, confirming a diagnosis of ichthyosis. The examiner also noted review of the Veteran’s medical history prior to service, during service and after separation from service. See November 16, 2020 Skin Disease examination pgs., 1-3. In a subsequent November 2020 Medical Opinion, the examiner opined that the Veteran’s ichthyosis, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner provided the following rationale to support this opinion: The Veteran has been diagnosed with ichthyosis since birth/early childhood. This diagnosis is listed on his entrance exam into service. After serving a few months, Veteran's STR's shows a complaint regarding dry, scaly, itching skin. Another STR shows the same complaint about one month later and on this exam was recommended to be medically boarded/discharged from service due to severity. The Veteran was medically discharged from service due to ichthyosis. It stands to reason that if Veteran was allowed on service with noted condition and then discharged a year later that his condition did, indeed, worsen during his service years. The Veteran's report from today's exam also aligns that his symptoms worsened during his service years. This has remained a chronic problem-worse symptom compared to when he entered the service. However, no medical research/literature can state specific reasons why ichthyosis would become aggravated except for listing cold weather- which Veteran was not exposed to, nor would it permanently aggravate his condition. Therefore, due to lack of medical literature Veteran's case of ichthyosis being aggravated due to service cannot be linked at this time. See November 16, 2020, Medical Opinion, pgs. 2-3. Here, the Board observes that while the November 2020 VA examiner found that the Veteran’s ichthyosis clearly and unmistakably was not aggravated beyond its natural progression in service, the VA examiner also acknowledged that the evidence of record demonstrates that his symptoms (1) worsened during his service years and (2) that his condition has remained a chronic problem-worse symptom compared to when he entered the service. The Board observes that the November 2020 examiner stated that “it stands to reason that if Veteran was allowed on service with noted condition and then discharged a year later that his condition did, indeed, worsen during his service years.” See November 16, 2020, Medical Opinion, pgs. 2-3. Hence, the Board finds that this evidence, taken together with the Veteran’s lay correspondence and January 2018 Board hearing testimony discussed earlier in this decision, affirmatively establishes an increase of his ichthyosis vulgaris. Having shown an increase in service, the Veteran's pre-existing ichthyosis vulgaris is presumed to have been aggravated by service unless VA can demonstrate by clear and unmistakable evidence that such increase was due to the natural progress of the disease. In order to rebut the presumption of aggravation, the evidence of natural progression must be unmistakable. Returning to our discussion of the November 2020 medical examination and medical opinion: Here the November 2020 examiner states that no medical research/literature can state specific reasons why ichthyosis would become aggravated except for listing cold weather- which Veteran was not exposed to. In this case, the Board observes that the examiner does not provide any evidence or cite any literature in relationship to the November 2020 in-person examination that demonstrates that the Veteran’s skin disability clearly and unmistakably was not aggravated by service beyond the normal progression of the disease. In other words, the November 2020 examiner does not refer to any evidence, or cite any medical research/literature to indicate why the Veteran’s ichthyosis would not become aggravated beyond its natural progression. Additionally, the Board observes that the Veteran’s tour of duty spanned from October 1966 to February 1967. The Veteran was stationed in Fort Hood, Texas. His decorations included the National Defense Service Medal and Marksman (Rifle). See DD-214. Thus, it is not clear from the November 2020 examination and medical opinion that the Veteran was not exposed to cold weather at any point during the entire duration of his tour of duty. As such, the Board is not convinced that the November 2020 in-person examination and medical opinion rises to the level of "clear and unmistakable evidence" as is needed to overcome the high evidentiary burden needed to rebut the presumption of aggravation in this case. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). The Board observes that this November 2020 medical opinion fails to establish that the increase was clearly and unmistakably due to the natural progress of the disorder by (1) comparing any change in baseline or (2) by discussing any aggravation aspect of his ichthyosis vulgaris. See, e.g. Horn v. Shinseki, 25 Vet. App. 231, 240 (2012) (discussing the types of evidence that may constitute or contribute to clear and unmistakable evidence of lack of aggravation); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Court has made clear that the clear-and-unmistakable-evidence standard is an onerous one and requires that the evidence be "undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). For the reasons stated above, the Board concludes that the Veteran’s pre-existing ichthyosis vulgaris underwent an increase in severity in service and is presumed to have been aggravated by service; the presumption of aggravation has not been rebutted by clear and unmistakable evidence. (Continued on next page.) Nexus to service As a final consideration, inasmuch as the Veteran has a current disability of ichthyosis (See December 2013 and November 2020 Skin Disease examinations, pg. 2 respectively), and there is no evidence to suggest that the ichthyosis he has now is different or wholly distinct from that demonstrated in service (See e.g., November 2020 Skin Disease examination re: disease onset and current course, pg. 3), the evidence sufficiently demonstrates both a current disability and a nexus to service. In light of the above, the Board concludes that the Veteran's ichthyosis vulgaris pre-existed active duty service but was aggravated as a result of that service. Entitlement to service connection is therefore warranted. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.