Citation Nr: 21027453 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-30 892 DATE: May 5, 2021 ORDER Service connection for rosacea claimed as facial rash is granted. Entitlement to service connection for an acquired psychiatric condition (claimed as an unspecified anxiety disorder) is denied. REMANDED Entitlement to service connection for degenerative disc disease of the cervical spine with congenital stenosis is remanded. FINDING OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's rosacea, claimed as facial rash, is related to his active service. 2. The preponderance of the evidence is against finding that the Veteran's acquired psychiatric condition (claimed as an unspecified anxiety disorder), began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW 1. The criteria for service connection for rosacea claimed as facial rash have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for an acquired psychiatric condition (claimed as an unspecified anxiety disorder) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 through November 1978 and from October 2001 through October 2002. He also had over 21 years of inactive service. These matters come before the Board of Veterans' Appeals (Board) from December 2011 and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in May 2019, the Board remanded the cervical spine matter to the RO for further development of records that might corroborate the Veteran's claim. Specifically, the RO updated and associated with the claims file all the outstanding VA treatment records and scheduled a VA medical opinion to determine the nature and etiology of any cervical spine disability particularly whether it was at least as likely as not related to an in-service injury, event, or disease, including the Veteran's July 1975 traffic accident. The RO complied to the extent possible and service connection was denied in a supplemental statement of the case (SSOC) dated in July 2020. The Board finds there has been substantial compliance with the May 2019 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271(1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The issues of rosacea, claimed as facial rash, and unspecified anxiety disorder, were most recently denied in an SSOC dated in March 2019 and have been subsequently appropriately certified to the Board and merged with the cervical spine claim. Therefore, the Board has appropriate jurisdiction on these matters. To the extent the record contains relevant evidence not yet considered by the agency of original jurisdiction (AOJ), the Veteran's attorney waived AOJ consideration of the evidence in February 2021 correspondence. Therefore, the Board may proceed to the merits without further remand on the matters of the rosacea/facial rash, and unspecified anxiety disorder claim. 38 C.F.R. § 20.1304(c). Unfortunately, as will be discussed further below, considering new arguments and/or new evidence presented, further development is required for the adjudication of the cervical spine claim. 1. Service connection for rosacea claimed as facial rash Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110 and 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran's diagnosed skin condition is not, however, a chronic disease. The Veteran asserts service connection for a skin condition. A current disability has been diagnosed, to include rosacea. In addition, a review of the Veteran's medical records reveal he was treated for acne and seborrheic dermatitis during active service. See 04/27/77, 10/05/77, 10/27/77, 1/25/78, and 08/28/02 medical records (noting acne lesions and irritation, rash on head, and "seborrheic dermatitis, well controlled with cream."). The only remaining element of the claim is whether the current disability is related to the Veteran's active service. On that issue, the record contains both positive and negative opinions. For reasons detailed below, the Board finds that the favorable opinion is more probative, so the claim will be granted. In September 2014, a VA examiner issued a medical opinion stating the Veteran's rosacea, claimed as a facial rash was less likely as not caused by, or a result of, or aggravated by the in-service dermatitis of unknown etiology of the penis. The examiner noted the Veteran had been diagnosed with a facial rash in at an allergy clinic in 1993 and the entry indicates that the rash started one year prior due to immunization. The Veteran was later diagnosed with rosacea for which he had since been treated with a topical gel. The examiner further reported there were no findings in the Veteran's medical record indicating that his noted facial rash (rosacea) was associated with or was the result of his service-connected eczema of the penis. This opinion is entitled to some weight; however, it did not address the various entries in the service records showing treatment for acne or dermatitis. In November 2015, a VA medical examiner reviewed the service records and relevant evidence and opined that the veteran's current diagnosis of rosacea claimed as a facial rash was less likely than not (less than 50 percent) incurred or caused by the acne and/or rash to the head during service. The examiner acknowledged that the service records did support a diagnosis of acne. However, with respect to the article the Veteran submitted indicating that rosacea can be mistakenly diagnosed as acne, the examiner noted that both conditions may co-exist, and given that the Veteran was seen, evaluated, and treated when his clinical presentation was evident to the medical providers at the time, "more credence has to be given to the diagnosis rendered at that time." The opinion is based on a review of the record and contains a thorough analysis, so it is entitled to probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran's representative submitted an October 2016 private opinion that supports the Veteran's claim. The private dermatology expert discussed the Veteran's Army and post-service medical records and noted that that the Veteran's treatment records indicate he was never seen by a physician or medical specialist while in service to assess his skin condition. Further, the specialist noted that rosacea, the Veteran's diagnosed condition, is frequently misdiagnosed as acne and opined that it was "more likely than not, the Veteran's rosacea and seborrhea of the face was diagnosed as acne in his army medical records." The opinion contains an accurate medical history and thorough analysis, so it is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. Resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran's rosacea, claimed as facial rash condition, began during active service, or is otherwise related to an in-service injury, event, or disease. Although the November 2015 VA examiner provided a convincing rationale for why there was no such relationship, the October 2016 private examiner provided an equally convincing rationale for why there is. While the November 2015 VA examiner noted the Veteran was "seen, evaluated, and treated" for his skin condition while his symptoms presented and therefore credence should be given to the contemporaneous medical reports, the October 2016 dermatology specialist pointed out that the Veteran was not seen by a proper physician or medical specialist during service, but rather by "Amosists," which were corpsmen using a manual under the supervision of physicians. Additionally, in this case, the private opinion was rendered by a specialist in the field of dermatology, whereas the VA examiner is a general practitioner. As such, the Board finds the private opinion is at least equally as probative as the VA opinion; thus, entitlement to service connection for rosacea, claimed as facial rash, is granted. 2. Entitlement to service connection for an acquired psychiatric condition (claimed as an unspecified anxiety disorder) The Veteran contends he has an unspecified anxiety disorder. See September 2015 Notice of Disagreement. Specifically, the Veteran asserts he was a soldier in good standing until he witnessed "horrific events and had several near-death experiences" while he was a crewmember assigned at Flatiron and developed a fear of flying causing his discharge from the Army. Id. While the Veteran filed a claim for unspecified anxiety disorder, he has been diagnosed with various mental health disorders throughout the period on appeal, including obsessive-compulsive disorder (OCD), panic disorder, and trauma-related disorder, so the Board finds that it is appropriate to broaden his claim to encompass any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). However, although the records reference "symptoms" of posttraumatic stress disorder (PTSD), that condition has never actually been diagnosed. Medical records reveal the Veteran reported to his first VA psychiatric session in January 2016 and reported excessive cleaning, fear of germs, contaminants, and flying. See January 19, 2016 VA treatment records. He claimed he had managed to control his symptoms while employed after the military, but they had resurfaced "now that he retired." Id. The Veteran reported his OCD behaviors began when he was in the military as a way of coping. See July 2016 VA treatment records (noting first onset of OCD was while serving in the military, afraid of contamination). During psychiatric visits, he reported military flashbacks cause OCD rituals, the fear of contamination. See 09/15/16 and 04/28/17 VA treatment records (noting continued OCD rituals and difficulty sleeping at night due to flashbacks). The Veteran reported he recognized his OCD rituals distract him from "traumatic memories of seeing someone burned alive and other things he witnessed while on active duty." See January 2019 VA treatment records. In September 2014 the Veteran underwent a VA psychiatric examination during which the examiner diagnosed unspecified anxiety disorder, mainly mild anxiety disorder, with obsessive-compulsive disorder (OCD) features, under DSM-5 criteria. The examiner opined the Veteran's mild anxiety was not linked to his military service. The examiner noted as rationale that the Veteran presented with complaints of anxiety and germ phobia causing elaborate compulsive behavior to ward off fears of germs. However, the Veteran never mentioned any correlation between these symptoms and the barely perceptible skin condition on his face. As such, the examiner found no link between the claimed mental disorder and his active military service. This opinion is not probative, as it did not fully address the question of direct service connection nor provide much rationale. Following the Veteran's September 2014 notice of disagreement, in November 2015, a VA examiner issued an updated medical opinion addressing the Veteran's contentions for direct service connection. After a thorough review of the record, supporting facts, and circumstances, the examiner opined the available objective evidence was "insufficient to demonstrate a linkage between his active duty service and his current anxiety condition." Therefore, the Veteran's unspecified anxiety disorder was less likely as not (50 percent or greater probability) incurred in or correlated to the Veteran's complaints of having a fear of flying during service. The examiner's rationale relied on both the Veteran prior statements and the medical records. In regard to the fear of flying, the Veteran reported "a month of counseling at Ft. Rucker because he developed a fear of flying." Outpatient reports dated July 1978 note the Veteran inquired about treatment for fear of flying and getting a bar to reenlistment removed; the condition was listed as being a phobic reaction and chronic in nature. He also reported a prior rejection from the military for a "fear of flying 77," on his September 1978 Report of Medical History, although there was no further indication of fear of flying on the medical form at the time of completion, and in fact, his psychiatric condition was checked as "normal." Further, the examiner notes on subsequent Reports of Medical History (11/04/1985, 09/09/1989, 08/07/1993 & 01/25/1998), the Veteran checked NO to "depression or excessive worry" and NO to "nervous trouble of any sort." Available medical records indicate the Veteran consistently answered "NO" to questions in his health history questionnaires/ health assessments regarding psychiatric symptoms. For instance, he answered NO in 01/10/2008 and 02/10/2009 in health questionnaires when asked "In the past few months have you been bothered by feeling down, helpless, panicky, or anxious?" In his Reserve Component Periodic Health Assessments dated 01/07/2005, 01/11/2008, 02/01/2006, he checked NO to being on medication for psychiatric conditions. On the NFPA 1582 Medical Questionnaire dated 02/03/2012 he checked NO to psychiatric conditions. A 03/04/2010 occupational/health fitness exam for respirator user certification notes, "No previous history of anxiety,...." And, an Air Force Web Based Health Assessment from 02/06/2013 notes 10 of 30 days of depressed mood and anxiety, but attributes these issues to bereavement. The 2015 VA examiner's opinion is probative, because it was based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner relied on the Veteran's own contemporaneous reports to medical providers during service, which are given substantial weight when considering evidence. The Veteran's representative argues this opinion is inadequate as it is "unclear" whether the examiner considered the Veteran's complete medical history. The Board disagrees. Unless there is reason to believe otherwise, when an examiner states the file was reviewed, it is presumed that the examiner is being truthful. There is no reason to believe otherwise here considering the examiner gave a lengthy dissertation of the Veteran's medical history with multiple citations to specific records and relied on accurate facts. All of these reports cited by the VA examiner conclusively refute any allegation the Veteran makes now that he was experiencing psychiatric symptoms during service which continued throughout. After the 1978 notations, he completed more than 20 years of active and inactive service, repeatedly denying having any psychiatric symptoms whatsoever. Furthermore, his file contains decades of medical records from military, VA, and private providers, yet he did not raise any mental health concerns until 2016, coincident with filing his claim for compensation with VA. The Veteran's denials of symptoms throughout his military career coupled with the fact he was receiving medical care from numerous sources yet did not bring forth any mental health complaints weigh against his allegations of in-service symptoms. While the 1978 records document a fear of flying, there is no persuasive evidence of any mental health symptoms during his many years of military service that followed, and there is no medical opinion linking a fear of flying to any of the currently diagnosed psychiatric conditions. The Veteran believes his acquired psychiatric disability is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of psychology and/or psychiatry. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. As a result, the Board gives more probative weight to the 2015 VA examiner's opinion. Also, while it is certainly believable he was exposed to various events during service as a crash recovery specialist that were traumatic to him, a diagnosis of PTSD has not been provided, and there is no medical opinion linking any of his currently diagnosed mental health conditions to those events. In light of the above analysis, the Board finds the preponderance of the evidence is against entitlement to service connection for an acquired psychiatric disorder (claimed as unspecified anxiety disorder). In denying the claim, the Board finds the benefit of the doubt doctrine is not applicable. REASONS FOR REMAND 1. Entitlement to service connection for degenerative disc disease of the cervical spine with congenital stenosis is remanded. In the most recent respondent's brief, the Veteran's representative raises the theory of secondary service connection claiming that the Veteran's service-connected lumbar symptoms contribute to his cervical spine condition. See November 2020 Appellate Brief. As a medical opinion for this secondary service connection theory has not been obtained, a remand is warranted. The matters are REMANDED for the following action: Refer the Veteran's file for an opinion as to the etiology of any cervical spine disability. The examiner must opine: (a.) whether it is at least as likely as not related to an in-service injury, event, or disease, including his July 1975 traffic accident. (b.) Whether it is at least as likely as not that the cervical spine disability was either (a) proximately caused by; or (b) proximately aggravated by the Veteran's service-connected lumbar condition. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mireya Martinez 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.