Citation Nr: 21029531 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-31 671A DATE: May 13, 2021 ORDER Entitlement to service connection for psychosis for the purpose of establishing eligibility for treatment only under 38 U.S.C. § 1702 is denied. REMANDED Entitlement to an initial compensable disability rating for service-connected pseudofolliculitis barbae is remanded. Entitlement to service connection for herpetic whitlow is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for residuals of hernia operation with spinal tap is remanded. Entitlement to service connection for a low back disability is remanded. FINDING OF FACT An active psychosis is not shown to have developed within two years of separation from active service. CONCLUSION OF LAW The criteria for eligibility for Chapter 17 medical benefits under 38 U.S.C. § 1702 for a psychosis are not met. 38 U.S.C. §§ 1702, 5107; 38 C.F.R. §§ 3.2, 3.384, 17.109(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1973 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, a VA Form 21-22a was added to the file appointing an agent, Bryan Held, as the Veteran's representative. Approximately 10 days later, the agent submitted notice that he wished to revoke the Power of Attorney (POA). He submitted a second request to revoke POA in January 2021, at which time he copied the Veteran on the correspondence and explained that he was unaware that this case was already pending at the Board when entering into the POA agreement. The Veteran subsequently attended a virtual hearing before the Board, at which it was stated that he was then unrepresented. As the Veteran had notice of the agent's request to withdraw representation, and chose to proceed pro se, the motion of the agent to withdraw from representation is granted. The Veteran presented testimony at a virtual hearing held before the undersigned Veterans Law Judge in February 2021. A copy of the transcript from that hearing is of record. Entitlement to service connection for a psychosis for treatment purposes only under 38 U.S.C. § 1702 is denied. Under 38 U.S.C. § 1702(a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a Veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service, for the purposes of eligibility for Chapter 17 benefits. 38 U.S.C. § 1702. VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384. In this regard, under 38 C.F.R. § 3.384, the term "psychosis" is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. In addition, the Board notes that 38 U.S.C. § 1702 has been expanded to include diagnoses of active mental illness; however, this provision explicitly applies only to veterans of the Persian Gulf War. See 38 U.S.C. § 1702(b). As the Veteran did not have active service during the Persian Gulf War era, the Board will limit consideration solely to whether the Veteran had an active psychosis within 2 years of his separation from service. See 38 C.F.R. § 3.2(i) (the wartime period for the Persian Gulf War era is defined as beginning on August 2, 1990, and ending on a date to be prescribed by Presidential proclamation or law). The Veteran has been diagnosed with schizophrenia, which is among the disorders designated as a psychosis under VA regulation and the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 38 C.F.R. §§ 3.384. A preponderance of the evidence of record, however, weighs against a finding that an active psychosis developed within the 2-year period following the Veteran's separation from active service. Rather, psychosis, NOS was first diagnosed by VA in September 1997, and the Veteran was noted in a January 2010 mental health intake note to have had periods of time in the 1980s and 1990s when he was sober but hearing voices. The Veteran has not asserted, and the evidence does not otherwise indicate, that he manifested symptoms of a psychosis during the period from July 1974 to July 1976. Accordingly, the Veteran has not met the necessary criteria for presumptive eligibility for Chapter 17 medical benefits for psychosis, to include schizophrenia, under 38 U.S.C. § 1702; the claim must therefore be denied. REASONS FOR REMAND 1. Entitlement to an initial compensable disability rating for service-connected pseudofolliculitis barbae is remanded. At the Board hearing, the Veteran testified that he cannot shave closely because he will break out in pustules/hair bumps, and that that he has black marks/scarring under his neck and under his beard hair. He further stated that he had been using an erythromycin topical solution on his face for the past couple of years. The last VA dermatology treatment record associated with the claims file is from December 2012. Additionally, other than one psychiatric discharge record from July 2018, the most-recent VA treatment records in the claims file date from March 2013. It thus appears that there may be outstanding relevant VA treatment records pertaining to the Veteran's pseudofolliculitis barbae. The Board notes that the Veteran was previously scheduled for a VA skin examination in March 2015, for which he was a no-show. As the Board is remanding this matter for further development, and the last VA examination of this condition was more than a decade ago, the Veteran should be given another opportunity to attend an examination to assess the severity and manifestations of his pseudofolliculitis barbae. 2. Entitlement to service connection for herpetic whitlow is remanded. The Veteran was provided with a VA examination and medical opinion with regard to his claimed herpes of the hands in June 2012. At that time, the examiner noted that the Veteran was diagnosed with herpetic whitlow in January 2011, was previously misdiagnosed with eczema, and had several sexually transmitted diseases while in service although herpes was not officially diagnosed then. The physician concluded that the Veteran's herpetic whitlow is less likely than not the result of service, as there is no documentation of herpes until decades after service. He further stated that "[t]he veteran is correct in assuming that herpes infection could have occurred at the same time he contracted a different sexually transmitted disease," but that "[t]hat would be basing [an] opinion solely on his report." When VA provides a veteran with examination or medical opinion, it must ensure that such is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, although the examiner noted that the Veteran's herpetic whitlow was previously misdiagnosed as eczema, his rationale does not make clear whether he considered the timing of the earlier eczema diagnosis when formulating his opinion. An October 1982 treatment record indicates that the Veteran was seen for a rash limited to both hands, described as blisters with rupture and itch. The Veteran reported the he'd experienced this rash over his hands on a recurrent basis from either 1977 or 1979. On remand, a supplemental medical opinion should be sought concerning the onset and etiology of the Veteran's current herpetic whitlow. 3. Entitlement to service connection for hepatitis C is remanded. The Veteran asserts that his hepatitis C is a result of unsanitary conditions and his high risk sexual activity while serving in Korea. An October 2011 VA examination report includes an opinion that the Veteran's long-term IV drug and intranasal cocaine use most likely caused his chronic hepatitis C infection, and outweighs the risk factor of a "one-time STD in service." The evidence of record, however, indicates that the Veteran was treated in service on three occasions for gonorrhea. An addendum opinion is needed to ensure the examiner's conclusion is based on an accurate factual premise. 4. Entitlement to service connection for posttraumatic stress disorder is remanded. The Veteran's prior representative asserted that further efforts were needed to attempt to obtain corroborating evidence of the described attempted sexual assault of the Veteran. Specifically, the Veteran has asserted that he reported the incident the following day, and that he was told that there was going to be an investigation. It was suggested that records of the Veteran's criminal complaint and the ensuing investigation may be housed with the United States Army Criminal Investigation Division. On remand, all efforts should be undertaken to obtain these federal records. 5. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. Because development requested for the remanded issue of entitlement to service connection for PTSD could significantly impact a decision on the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, a remand of the latter claim is also needed. 6. Entitlement to service connection for erectile dysfunction is remanded. The Veteran asserts that he suffers from erectile dysfunction related to symptoms and medication used to treat his psychiatric disorder(s). Because a decision on the remanded issues of entitlement to service connection for PTSD and an acquired psychiatric disorder other than PTSD could significantly impact a decision on the issue of entitlement to service connection for erectile dysfunction, the issues are inextricably intertwined. A remand of the latter claim is therefore needed. 7. Entitlement to service connection for residuals of hernia operation with spinal tap to include a painful/tender scar is remanded. At the Board hearing, the Veteran testified that he has experienced back pain since his hernia operation in 1975. An August 1975 VA treatment record documents the Veteran's report that he was told by his post doctor that he had a hernia. The September 1975 surgery report specifies that the Veteran had a one-year history of nonpainful, nontender swelling in the left groin. The Veteran has not yet been provided with VA examination to determine whether he has suffered from any residuals of his hernia operation during the relevant appeal period. On remand, such an examination should be scheduled. 8. Entitlement to service connection for a low back disability is remanded. The Veteran contends that he has suffered from back pain since undergoing "spinal tap" at the time of his hernia operation. Because a decision on the remanded issue of entitlement to service connection for residuals of hernia operation could significantly impact a decision on the issue of entitlement to service connection for a back disability, the issues are inextricably intertwined. A remand of the latter claim is therefore also needed. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2013 to the present and associate them with the claims file. 2. Contact all appropriate authorities who would have been involved in investing or storing records concerning the alleged sexual assault against the Veteran during Memorial Day weekend, 1974, including but not limited to the Army Criminal Investigation Division. All requests for information and responses should be documented for the record. 3. After associating all records responsive with remand directive #1 with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected pseudofolliculitis barbae. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. A clear rationale must be provided for any opinion or conclusion stated. 4. After associating all documents responsive to remand directive # 1 with the claims file, obtain a supplemental medical opinion from a suitably-qualified medical professional ("reviewer") concerning the etiology of the Veteran's herpetic whitlow. The reviewer must be given access to the claims file and should consider both the medical and lay evidence of record when formulating their opinion. The reviewer must state an opinion as to whether it is at least as likely as not that the Veteran's herpetic whitlow, present during the relevant appeal period (January 2012 to present) was incurred during or is otherwise related to his active military service. The reviewer's attention is directed to VA treatment records from October 1982, noting a skin condition of the hands then-diagnosed as eczema, with blisters, rupture, and itch, beginning either in 1977 or 1979. It is noted that the June 2012 examiner indicated that the Veteran's herpetic whitlow had previously been misdiagnosed as eczema. A clear rationale must be provided for any opinion stated. 5. After associating all documents responsive to remand directive #1 with the claims file, obtain a supplemental medical opinion from a suitably-qualified medical professional ("reviewer") concerning the etiology of the Veteran's hepatitis C. The reviewer must be given access to the claims file. The reviewer must state an opinion as to whether it is at least as likely as not that the Veteran's hepatitis C was incurred during or is otherwise related to his active military service. The Veteran asserts that unsanitary conditions and his high risk sexual activity while serving in Korea, as evidenced by in-service diagnoses of gonococcal urethritis in February 1974, April 1974, and May 1974, led to his hepatitis C. A clear rationale must be provided for any conclusion or opinion stated. 6. After associating all records responsive to remand directive #1 with the claims file, schedule the Veteran for an examination with an appropriately-qualified medical professional concerning his claim for service connection for residuals of hernia surgery with spinal tap, to include painful/tender scar. The examiner must be given access to the claims file. The examiner is asked to identify any residuals of the Veteran's September 1975 left inguinal herniorrhaphy present at any time during the relevant appeal period (December 2010 to present), to include any scars. The examiner is asked to address the Veteran's assertion at the Board hearing that he has suffered from back pain since they "spinal tapped" him twice in the lumbar area when they performed the surgery (possibly referring to anesthesia?) A clear rationale must be provided for any conclusion or opinion stated. 7. After completing the above, confirm that VA examination reports and all medical opinions provided comport with this remand. 8. After completing the above, and conducting any further development deemed necessary, readjudicate the remaining claims on appeal. If the benefits sought are not granted in full, issue a supplemental statement of the case and allow an appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.