Citation Nr: 21031078 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 10-03 216 DATE: May 20, 2021 ORDER Entitlement to service connection for neurodermatitis is granted. Entitlement to service connection for chloracne is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The Veteran's neurodermatitis is aggravated by his service-connected diabetes mellitus. 2. Chloracne was not present in service or within the first post-service year and has not been present during the claim period. CONCLUSIONS OF LAW 1. The criteria for service connection for neurodermatitis, as secondary to service-connected diabetes mellitus, have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for claim for service connection for chloracne have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1971. The Department of Veterans Affairs (VA) is grateful for his service. The Veteran testified before the undersigned Veterans Law Judge at the Board of Veterans' Appeals (Board) in January 2011; a transcript is of record. The Board remanded the appealed claims for further development in November 2014 and again in September 2020. The appeal now returns to the Board for further review. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Simply put, service connection is not warranted in the absence of proof of current disability. The current disability requirement may be satisfied by the presence of the claimed disability at any time during the claim period. McClain v. Nicholson, 21 Vet. App. 319,321 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim [...] even though the disability resolves prior to the Secretary's adjudication of the claim"). The Board must determine whether the evidence in the record, constitutes "competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability" under new section 5103A(d)(2)(A). See also Caluza v. Brown, 7 Vet. App. 498, 504 (1995) (where determinative issue involves either medical etiology or medical diagnosis, competent medical evidence is required), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Appeals for Veterans Claims (Court) recently clarified the circumstances in which service connection is warranted based on secondary aggravation. See Ward v. Wilkie, 31 Vet. App. 233 (2019). In pertinent part, the Court held that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that "aggravation" is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. To establish presumptive service connection for a disease associated with exposure to certain herbicide agents (e.g., Agent Orange), the evidence must show the following: (1) that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents listed under 38 C.F.R. § 3.309 (e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to service connection for neurodermatitis The Veteran contends, in effect, that neurodermatitis or another skin condition developed in service or is causally related to service or is related to a service-connected condition. VA examiners have reviewed the record and examined the Veteran and concluded that any skin conditions the Veteran had in service resolved and that current skin conditions are unrelated to service or to in-service skin conditions. However, the most recent VA examiner in January 2021 found that the Veteran has neurodermatitis which currently affects the skin of the left foot, with recurrent skin breakdown despite continuous use of topical medication. Prior examination revealed neurodermatitis affecting other parts. The examiner concluded that it was at least as likely as not that the Veteran's service-connected diabetes mellitus was impairing the healing of his neurodermatitis, and the examiner concluded that hence the Veteran's service-connected diabetes mellitus was aggravating (worsening) the Veteran's neurodermatitis. Countervailing medical evidence is not presented. As noted above, secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Here, the January 2021 VA examiner clearly concluded that the Veteran's diabetes mellitus aggravated the Veteran's neurodermatitis by impairing healing. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Resolving all reasonable doubt in the Veteran's favor, service connection for neurodermatitis is warranted. 38 C.F.R. § 3.310. 2. Entitlement to service connection for chloracne The Veteran contends, in effect, that he has chloracne which either developed in service or is causally related to service including related to exposure to an herbicide agent in service. The Veteran served in Vietnam during the Vietnam Era, and is presumed to have been exposed to an herbicide agent, and on this basis, a presumption of service connection for chloracne may potentially apply. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). On the basis of such exposure to an herbicide agent during service, chloracne or other acneform disease consistent with chloracne is presumptively service-connected if manifested to a compensable degree within a year after the last date of such exposure to the herbicide agent in active service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a). In this case, the record does not support a diagnosis of chloracne in service or within the first post-service year, or during the claim period. Regarding any awareness on the part of the Veteran of a diagnosis of chloracne, at his January 2011 hearing before the undersigned, the Veteran conceded that he had not seen a diagnosis of chloracne. (Hearing transcript, pg. 9.) Hence, the preponderance of the evidence is against the claim for service connection for chloracne both because the Veteran does not meet the requirements for service connection for chloracne presumptively based on presumed herbicide agent exposure, and because the Veteran does not meet the current disability requirement for chloracne based on evidence presented not supporting the presence of chloracne during the claim period. Id.; 38 C.F.R. § 3.303; Holton, 557 F.3d at 1366; Rabideau, 2 Vet. App. at 144; McClain, 21 Vet. App. at 321. While the Veteran may sincerely believe that he has or has had chloracne with onset in service or following service or causally linked to service, the Veteran, as a layperson, is without the expertise needed to ascertain whether chloracne was present in service, following service, or during the claim period, because diagnosis of a particular skin disability and differentiating one from another require specialized medical skills and training beyond lay competence. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). To arrive at this determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against entitlement to the service connection for chloracne, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include PTSD The Veteran was most recently afforded a VA examination addressing his claimed psychiatric disability in January 2016. The examiner concluded that a diagnosis of a psychiatric disorder could not be made due to over-reporting of symptoms, even while the examiner conceded that the Veteran might well have a psychiatric disorder superimposing on his schizotypal personality disorder. The January 2016 examiner discounted treatment record showing diagnoses of psychiatric disorders based on treating clinicians failing to adequately evaluate the Veteran with psychological testing with validity testing, whereas the January 2016 examiner reviewed such testing and noted that such testing indicated invalidity due to overreporting of symptoms. The examiner also noted the fact that the Veteran retained employment as a bus driver and remaining married as evidence of the Veteran not having a psychiatric disability. However, a psychiatric disability is not precluded because of either marriage or employment. The Board finds that the examiner provided an inadequate rationale for failing to arrive at any psychiatric diagnosis, particularly because the examiner failed to address the fact that the Veteran has been prescribed multiple ongoing medications generally prescribed for treatment of psychiatric disorders, and ongoing symptoms appear to include depression, anxiety, panic, and sleep impairment. Prescribed medications included citalopram and clonazepam, which the examiner listed among the Veteran's many other medications but which the examiner failed to otherwise address. Subsequent treatment records up to the present include diagnoses of PTSD, major depressive disorder, and panic disorder. The Board finds that the record as a whole appears to indicate significant psychiatric disability for which the Veteran has received ongoing mental health care including medication management. A new examination by a different examiner is warranted to address the nature and etiology of any psychiatric disabilities present over the claim period, including whether the Veteran has PTSD and whether other psychiatric disability developed in service or is causally related to service, including related to exposure to war while stationed in Vietnam during the Vietnam Era. The matter is REMANDED for the following actions: 1. Afford the Veteran a new VA psychiatric examination by an examiner other than the one who examined him in January 2016. The examiner should address the nature and etiology of any acquired psychiatric disorder, which may include a psychiatric disability superimposed on the Veteran's diagnosed schizotypal personality disorder. The claims file should be reviewed, and any necessary tests or studies should be conducted, with pertinent findings reported in detail in the examination report. The examiner should be advised that the prior VA examination in January 2016 was inadequate for failing to adequately consider the presence or absence of psychiatric disability during the claim period, including failing to adequately address the record reflecting that the Veteran has received ongoing care including medication management for psychiatric disability. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should then address, separately for each disorder present during the claim period, whether it is at least as likely as not (50 percent probability or greater) that the disorder developed in service or is otherwise causally related to service, including related to exposure to circumstances of war in Vietnam during the Vietnam Era. The examiner also should specifically determine whether the Veteran meets the criteria for a diagnosis of PTSD causally associated with stressors experienced in service, including related to exposure to circumstances of war in Vietnam during the Vietnam Era. In rendering these opinions, the examiner should explicitly consider the Veteran's lay statements of experiences, symptoms, and current and past treatment including medication management for psychiatric disability, and current and past examination and testing. The examiner must provide rationales in support of all opinions provided. In providing the opinions, the examiner must consider the Veteran's mental health history as well as the findings documented at the time of the examination. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 2. Readjudicate the claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.