Citation Nr: 21015376 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-34 247A DATE: March 17, 2021 ORDER Entitlement to service connection for a skin disability, to include as due to herbicide exposure is denied. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran’s exposure to herbicide agents in Vietnam is presumed. 2. The Veteran did not have a skin disorder during service, his current skin disorder is not presumptively related to service, and there is no indication that the skin disorder that first manifested decades after service is related to service. 3. Throughout the appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity due to symptoms is not shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin disability, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.126, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Board remanded the case. 1. Entitlement to service connection for a skin disability, to include as due to herbicide exposure. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. §§ 3.307(a)(6); 3.309(e) are met. The Veteran served in Vietnam in 1967. See May 2017 Military Personnel Record. Based on such service, his exposure to herbicide agents is presumed. See 38 C.F.R. § 3.307(a)(6)(iii). The Veteran’s skin disability is not a disease entitled to presumptive service connection. However, even if a veteran is not entitled to presumptive service connection for a disease claimed as due to herbicide exposure, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the claimant is afforded the benefit of the doubt. The Veteran contends that his current skin disorder is related to his service. In July 2018, he reported seeing dermatologists over the years and that things “have been burned, frozen or scraped off” his body, but he was unable to obtain the records. See July 2018 Correspondence. The Veteran’s service treatment records are silent for any skin problems. On the November 1967 separation examination, his skin was normal. See May 2017 STR – Medical. The earliest post-service evidence of a skin problem is in March 2017 when the Veteran complained of a bilateral hand rash that began 10 months earlier, which the clinician noted was February 2016, and recurred approximately every two months. The examination revealed red patches and scaling on edges. There was no itch for eczema and no history consistent with eczema. The clinician noted Raynaud’s would be fingertips, and his palms and base of hands are affected. The assessment was erythromelalgia. See September 2020 Medical Treatment Record – Non-Government Facility. On January 2018 Agent Orange Registry examination, the Veteran reported that his skin disorder started after service and it was treated topically. His hands were worsening and flared up every six weeks. Similar complaints were noted in June 2019. See January 2018 and December 2019 CAPRI records. On November 2020, the Veteran was afforded a VA examination, but no opinion was requested. The diagnoses were erythema multiforme and toxic epidermal necrolysis, and both were quiescent on examination. The onset was 2018. See November 2020 C&P Exam. In the present case, the RO arranged for a VA examination, possibly to satisfy the Veteran’s request for an examination. See July 2018 Form 9. The RO did not request an opinion and the Board finds that none is needed to decide the appeal. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds that there is no competent evidence that the claimed disability may be related to service, to include exposure to herbicide agents during service. There is no evidence of a skin disorder in service and even though he was exposed to herbicide agents in service, his current skin disorder did not manifest until 49 years after service and there is nothing in the record to suggest it could be related to his in-service exposure. For these reasons, the Board finds a VA medical opinion is not necessary to decide the claims for service connection on appeal. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). Although the Veteran notes that chloracne is related to exposure to herbicide agents, he has not been diagnosed with this disorder. Furthermore, the skin disorders that have been diagnosed are not presumptively related to exposure to herbicide agents. See 38 C.F.R. § 3.309(e). There is also no evidence that suggests they are related to service, to include exposure to herbicide agents; therefore, the evidence is against a finding that the Veteran has a skin disorder related to exposure to herbicide agents. The Veteran reported that his skin problems started after service, but he has not stated whether it was shortly after service or many years later. He reported being seen by dermatologists over the years, but this also provides no information as to how far back his treatment went or what disorders were diagnosed. The available post-service treatment records concerning his current skin disorder show he only reported an onset of symptoms in February 2016, which was 49 years after he separated from service. The onset of the diagnoses noted on the November 2020 VA examination was in 2018, which was 51 years after service. The fact that both diagnoses and onset of symptoms occurred so many decades after service is a factor that weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the present case, the Veteran was not shown to have a skin disorder during service, there is no probative evidence that suggests he has a current skin disorder that is related to his military service, and there are no complaints or findings of a skin disorder until decades after service. For these reasons, the Board finds that a preponderance of the evidence is against service connection and the claim is denied. 2. Entitlement to an initial rating in excess of 30 percent for PTSD. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that a higher rating should be assigned for his psychiatric disability. The Veteran’s PTSD is rated 30 percent disabling and evaluated using the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Formula, a 30 percent rating is assigned for PTSD when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss. Id. A 50 percent evaluation is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name. Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). On June 2017 VA examination, the Veteran met the criteria for a PTSD diagnosis, which included markedly diminished interest or participation in significant activities and feelings of detachment or estrangement from others. The clinician indicated the disability was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. His symptoms were anxiety, suspiciousness, and chronic sleep impairment. There were no other symptoms attributable to his PTSD. The clinician stated that the Veteran functioned well and that he retired due to a knee injury. His retirement bought up memories of the war, which was disturbing. The Veteran reported that working so hard 24/7 for years kept his emotions about Vietnam at bay. He was married and divorced twice and had three children, one of which lived with him. He was active in a veterans service organization. The Veteran was alert and cooperative and denied suicidal or homicidal ideation. The clinician noted that the Veteran’s mental symptoms were mild and that he did not contend that functional impairment was due to the effects of his mental disorder. See June 2017 C&P Exam. In September 2017, the Veteran disagreed with the examiner’s assessment that his symptoms were mild or transient. He believed, based on her facial response, that the examiner was scared by him. He stated that he was completely isolated and had severe panic attacks that impacted his closest relationships. The Veteran also stated that some of the thoughts that went through his mind could not be disclosed. See September 2017 NOD. On a January 2018 Agent Orange Registry screening examination, the Veteran reported that his symptoms had worsened since retirement and that he had not had any treatment. His subjective complaints were depression, nightmares, flashbacks, thoughts of service, poor sleep, avoidance of war issues and anger with war politics, dislike of crowds, anxiety, detachment/loner, and forgetfulness. See December 2019 CAPRI records. May and July 2018 private treatment records show his memory for medical history details, attention, concentration, comprehension, naming, and repetition were intact. See September 2020 Medical Treatment Record – Non-Government Facility. In May 2019, VA treatment records show that he reported mild depression, but the depression screening was negative. See December 2019 CAPRI records. On November 2020 VA examination, the examiner indicated that the Veteran’s PTSD was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-fare, and conversation. Since his last VA examination, the Veteran reported being unable to maintain a relationship longer than five years. He lost three brothers in the past year, and he had considered them to be his closest friends. He also had one other brother and four sisters with whom he communicated with regularly and had strong relationships. He also had a strong relationship with his daughter but had lost contact with an “abandoned boy” he had raised. He retired in 2006 and stated that he was more than capable to complete his prior work duties but could not return to his former employment due to physical disabilities. The Veteran denied getting treatment or taking psychotropic medication or over-the-counter aides. He reported chronic sleep deficit due to nightmares and described episodes of hypervigilance and anxiety. His symptoms were anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The Veteran denied current or history of suicidal or homicidal ideation or self-harming behaviors. He also denied hallucinations or delusions. He was dressed appropriately, and grooming/hygiene was appropriate. His mood was melancholic and affect stable. Thought content was coherent and linear. The examiner commented that in consideration of all forms of work, the Veteran attested to being motivated to work and was fully capable to complete work-like activities emotionally and cognitively. The Veteran's chronic sleep impairment associated to his service-connected PTSD caused him to be fatigued during the day and caused him to take a nap. See November 2020 C&P Exam. The Board finds that based on the evidence that throughout the appeal the Veteran’s PTSD was most consistent with a 30 percent rating. Since the Veteran has not sought treatment for his PTSD, there is very little evidence other than examinations upon which to consider in rating the disability. During VA examinations, he endorsed symptoms of depression, anxiety, suspiciousness, sleep impairment, and disturbances of motivation and mood. On a Gulf War Registry exam, he reported some additional symptoms, but even with those symptoms his PTSD does not more nearly approximate the criteria for a higher rating. The Veteran’s September 2017 statement does not comport with the other evidence of record. He reported his symptoms were not mild, but a May 2019 record only noted a report of mild depression. His report of total isolation is inconsistent with his report of being active in a veterans service organization. His report of having severe panic attacks that impacted his closest relationship does not appear to have had any significant negative impairment on his relationships. Although he has had two unsuccessful marriages since service and stated he could not maintain a relationship longer than five years, he has not stated this was due to panic attacks. Furthermore, the relationships with his daughter and many siblings were strong and close. While some other relationships have failed, he is still shown to be able to maintain several close relationships, which indicates he does not have difficulty establishing and maintaining social relationships. The Veteran reported forgetfulness on the Gulf War Registry examination, but there is no objective evidence of this since VA treatment records and examinations show no deficit in memory, attention, or concentration. The VA examinations also do not reflect a level that indicates his disability manifested symptoms that reduced occupation and social reliability and productivity. The June 2017 VA examiner stated the Veteran functioned well and the November 2020 examiner noted that the Veteran himself believed he was fully capable of completing work-like activities emotionally and cognitively. The only obstacle was that the Veteran would get fatigued during the day due to his chronic sleep impairment. At most, the Board finds this would decrease his efficiency and cause intermittent inability to perform occupational tasks. Although the November 2020 VA examiner noted the Veteran had disturbances of motivation and mood, which a symptom contemplated in the criteria for a 50 percent rating, this alone is not sufficiently severe to assign a 50 percent rating. Taking into consideration the medical evidence and his statements, his overall disability picture is not consistent with a higher rating for the reasons stated. Thus, the Board finds that a preponderance of the evidence is against a higher rating for PTSD and at no time has the disability met or approximated the criteria for a higher rating. The claim is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.