Citation Nr: 21022218 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-04 029A DATE: April 15, 2021 ORDER Entitlement to service connection for xerosis cutis is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a disability manifesting in fatigue is remanded. Entitlement to service connection for a left clavicle disability is remanded. FINDING OF FACT After resolving reasonable doubt in the Veteran’s favor, his xerosis cutis was incurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for xerosis cutis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1973 to September 1975. He also had an additional period of active duty for training from October 1972 to April 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and March 2014 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in June 2018 and October 2020 for further development. In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Since the last Board remand, the issues of service connection for a left leg disability, a left shoulder disability, a left arm disability, and a lumbar spine disability were granted by the Agency of Original Jurisdiction (AOJ). See January 2021 rating decision. Because that decision represents a full grant of the benefits sought, those issues are no longer on appeal. 1. Entitlement to service connection for a skin disability. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran is diagnosed with xerosis cutis, which a VA examiner described as dry skin affecting various parts of the Veteran’s body. See November 2020 VA skin examination. The Veteran reported that he developed a heavy rash all over his body during service and continued to have such symptoms since that time. See June 2017 Board hearing; July 2012 VA skin examination; June 2000 statement. He is competent to report that he has had dry skin since service and the Board finds his statements credible. A November 2020 VA examiner opined twice that it was less likely than not that the Veteran’s xerosis cutis was related to service. See November 2020 medical opinion; December 2020 medical opinion. However, the opinions are inadequate because they relied solely on the absence of medical evidence during service and did not consider the Veteran’s competent and credible lay statements of symptoms since service. As a result, the opinions are given no probative weight. After considering the Veteran’s diagnosis of xerosis cutis and his statements regarding symptoms since service, and after resolving reasonable doubt in his favor, the Board finds that the Veteran’s xerosis cutis was incurred during service. Thus, service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea. The Veteran testified that he began having sleep disturbances and sleep apnea episodes since leaving Camp Lejeune, which got worse after he was diagnosed with kidney cancer. See June 2017 Board hearing. During a November 2020 VA examination, the Veteran reported that he began to have trouble sleeping and witnessed apneas during service. The November 2020 VA examiner initially provided an opinion in November 2020 that it was less likely than not that the Veteran’s sleep apnea was related to service because there were no medical records showing a diagnosis or treatment for the disability during service. This opinion is inadequate because it relies on the absence of medical evidence during service without considering the Veteran’s lay statements. The examiner then provided a new opinion in December 2020 that the Veteran’s disability was less likely than not related to service, but the opinion is also inadequate because it relied on the lack of a sleep study during service without considering whether the symptoms reported during service reflect incurrence of the disability. As a result, remand for a new opinion is necessary. During his June 2017 Board hearing, the Veteran asserted that his service-connected kidney disability aggravated his sleep apnea because of the worry and stress associated with the disability. The November 2020 VA examiner did not discuss whether such stress and worry could aggravate his sleep apnea in either the November 2020 or December 2020 opinions provided. As a result, the opinions are inadequate, and remand for a new opinion is necessary. 2. Entitlement to service connection for fatigue. An August 2019 VA examiner opined that the Veteran’s fatigue was related to his sleep apnea and secondary polycythemia. In October 2020, the Board remanded this matter for an opinion about whether the Veteran’s polycythemia is related to service. Rather than providing an opinion regarding polycythemia, the November 2020 VA examiner opined that the Veteran did not have a disability manifesting in fatigue and did not discuss polycythemia at all. As a result, the opinion is inadequate, and remand for a new opinion is necessary. 3. Entitlement to service connection for a left clavicle disability. As discussed in the last Board remand, the Veteran testified that he had pain in his left clavicle since his in-service motor vehicle accident (MVA). See June 2017 Board hearing. A November 2020 VA examiner opined that the Veteran did not have a clavicle disability but did not discuss that the Veteran was diagnosed with acromioclavicular joint degenerative changes with hypertrophy during an August 2019 VA examination. As a result, the opinion is inadequate, and remand for a new opinion is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from February 2021 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of his sleep apnea. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran’s sleep apnea was aggravated by his service-connected residuals of right kidney partial nephrectomy? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss the Veteran’s statements that his sleep disturbances worsened after being diagnosed with kidney cancer because of stress and worry. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran’s sleep apnea was incurred in or otherwise related to his military service? Please explain why. The examiner must discuss the Veteran’s in-service MVA and his report that his sleep problems started around that time. An opinion merely relying on the absence of evidence or a diagnosis in STRs or treatment records will not be considered adequate. 3. After the development in the first directive has been completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any disability manifesting in fatigue. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran’s polycythemia was incurred in or otherwise related to his military service, to include exposure to toxins at Camp Lejeune? Please explain why. The examiner must discuss the Veteran’s report of symptoms during his time at Camp Lejeune. An opinion merely relying on the absence of evidence in STRs or treatment records will not be considered adequate, nor will a statement that the Veteran’s disability is not a presumptive disease. The examiner may not rely solely on medical literature without discussing the facts of the Veteran’s case. 4. After the development in the first directive has been completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any left clavicle disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion that responds to the following: (a.) Please identify, by diagnosis, any left clavicle disability present during the appeal period (from October 2013). The examiner must discuss the August 2019 VA examiner diagnosis of acromioclavicular joint degenerative changes with hypertrophy. (b.) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was incurred in or otherwise related to the Veteran’s military service? Please explain why. The Veteran’s April 1974 MVA and his statements that he has had pain since that time must be discussed. An opinion merely relying on the absence of evidence in the Veteran’s STRs or treatment records will not be considered adequate. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.