Citation Nr: 21042056 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-43 428 DATE: July 11, 2021 ORDER Entitlement to service connection for a skin disorder, to include psoriasis and/or psoriatic arthritis is denied. Entitlement to service connection for a respiratory disorder, to include asbestosis and asthma is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran's psoriasis and psoriatic arthritis was not incurred in service, or within one year of discharge. 2. The preponderance of the evidence shows the Veteran's asthma was not incurred in service or is otherwise related to service, and the evidence does not demonstrate the Veteran to have asbestosis during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder, to include psoriasis and/or psoriatic arthritis have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a respiratory disorder, to include asbestosis and asthma have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to March 1971. These matters come before the Board of Veterans' Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Partial Remand (JMPR). This JMPR vacated and remanded the November 2018 Board decision denying the issues on appeal. Specifically, the Court directed that the Veteran's VA treatment records prior to August 7, 1998 be obtained. The Board remanded these issues in March 2020 to comply with the Court's August 2019 order. The RO requested the Veteran's treatment records in March 2020. The VA conducted a thorough search for any outstanding treatment records prior to August 7, 1998. An internal VA memo indicated that no VA treatment records from September 1992 to August 6, 1998 were found. The RO associated all the Veteran's treatment records in VA's possession, including August 1998 treatment notes, past, and current VA treatment records. The RO received additional responses in March 2020 and April 2020 indicating VA does not possess additional outstanding treatment records prior to August 1998. VA requested Social Security Administration (SSA) records and was informed that such records do not exist in a February 2021 response. Any further efforts to obtain these records will be futile. The Board finds there has been substantial compliance with the March 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). These matters are properly before the Board for adjudication. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for arthritis). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. 1. Entitlement to service connection for a skin disorder, to include psoriasis and/or psoriatic arthritis A diagnosis of psoriasis and psoriatic arthritis is well documented. The Veteran's service treatment records show he was treated for cellulitis (July 24, 1967), warts (January 28, 1969), and excessive earwax (November 18, 1968) during service. Shedden elements (1) and (2) are met. Turning to element (3), a nexus, the Veteran was afforded a VA medical examination in June 2015. The examiner diagnosed the Veteran with psoriasis and opined that it was less likely than not that his disability was caused by or incurred in active service. The examiner's opinion was essentially based on the absence of a diagnosis while in service. Although the examiner noted service treatment records documenting that he underwent treatment for cellulitis and warts while in service, he did not explain whether psoriasis was etiologically related to either. Thus, the Board affords this opinion minimal probative weight, as most of the probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Another VA medical opinion was obtained in January 2018. The examiner reviewed the claims file and opined that it was less likely than not that the Veteran had a skin disability, to include psoriasis, which was incurred in or otherwise causally related to his active service. The examiner noted that the Veteran received treatment in 1967 for cellulitis of the right palm due to an infected cut and an infection of the left foot which was treated with soaks. In 1969, right elbow warts were treated with liquid nitrogen. Such were the only skin disorders for which the Veteran was treated in service. It was further noted that the Veteran was also treated for earwax (cerumen) on one occasion. However, the examiner stated that none of these could in any way be stretched into a diagnosis of psoriasis, as each condition had very clear-cut medical settings, which were in no way related to psoriasis or could be confused with psoriasis; psoriasis had very distinct and typical skin manifestations. The examiner noted that increased earwax may occur from many causes, the most common of which were narrow ear canals and genetic causes. Moreover, during the Veteran's separation examination in March 1971, his skin was found to be normal. The examiner finally observed that dermatologic examination during a thorough April 1977 physical examination was dermatologically normal. The Board finds the January 2018 VA examination report to be highly probative, sufficiently rationalized, and is based on thorough review of the record. There are no competent medical opinions to the contrary. For the foregoing reasons, the preponderance establishes that the Veteran's skin disability, to include psoriasis and psoriatic arthritis is not related to service under a direct service connection theory. The Veteran's psoriatic arthritis is a disease that maybe granted service connection on a presumptive basis under 38 C.F.R. § 3.309 if manifested to a compensable degree within 1 year of separation from service. Based upon the medical evidence, the first documented manifestation of psoriasis and/or psoriatic arthritis occurred in 1989, 18 years after service. As stated above, the Veteran's April 1977 dermatology examination showed the Veteran's skin was normal. Moreover, the Veteran did not seek treatment for his psoriasis and/or psoriatic arthritis until his referral to a rheumatologist in December 1989 who ordered X-ray imaging that showed no indication of arthritis. A January 1990 treatment note showed a diagnosis of psoriasis with arthropathy, 19 years after service. As such, service connection on a presumptive basis under 38 C.F.R. § 3.309 is not applicable and the evidence does not support a finding of continuity of symptomatology under 38 C.F.R. § 3.303 (b). Consideration has been given to the Veteran's reports of psoriasis during service and intermittent flare-ups shortly after discharge which he self-treated for many years until 1989. These reports are not credible due to inconsistency. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) In this regard, the Board notes that the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service-connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, and importantly, when seeking treatment, the Veteran did not initially report symptoms continuously since service. 38 C.F.R. § 3.303 (b). The Board finds that his statements to clinicians for purposes of treatment are the most probative. It was in his best medical interest to provide as accurate a history as possible to, in turn, receive the best and most appropriate course of care. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ([R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.)). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. While there is plenty of evidence of psoriasis and psoriatic arthritis, these reports show it did not appear until the latter half of the 1980's and/ or 1990. More importantly, treatment records show the Veteran reported having a 10-year history of psoriasis and associated arthritis in March 2000 and a 15-year history of psoriasis in November 2009. Treatment records also show the Veteran made statements to treating physicians which indicate his skin disability manifested on or about 1989. See Medical Treatment Note dated October 2008, February 2009, November 2009, June 2010, April 2011, July 2019. In September 2008, the Veteran reported psoriasis began at age 40. This statement provided to treatment providers for medical care reflects that the claimed disability first manifested in January 1988, 17 years after discharge. The Veteran's medical treatment records show no complaints of a skin disorder, to include psoriasis and psoriatic arthritis nor do they show reports he was self-treating his disability to treatment providers prior to 1988. The Board has also considered the Veteran's allegations that his cellulitis disability and earwax problems during service were misdiagnosed by an inexperienced medic. It is acknowledged that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding chronicity or etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There is no indication that the Veteran is competent to etiologically link any symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise as to these disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Further, the January 2018 VA examiner clearly stated that these disorders could not be stretched into a diagnosis of psoriasis, because each condition were in no way related to psoriasis nor could they be confused with psoriasis. Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claim. 2. Entitlement to service connection for a respiratory disorder, to include asbestosis and asthma A diagnosis for asthma well established and the Veteran stated he removed asbestos from bulkheads, overheads, and piping; cleaned black oil, JP-5, and aviation gas tanks. Shedden elements (1) and (2) are met. Turning to element (3), the Veteran underwent a VA medical examination in June 2015. The examiner diagnosed the Veteran with asthma but opined that it was less likely than not caused by asbestos exposure because the Veteran had not been diagnosed with asbestos exposure while on active duty. An opinion regarding the Veteran's contended exposure to black oil and other chemicals when cleaning tanks was not offered. Thus, the Board affords this opinion minimal probative weight, as most of the probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Another VA medical opinion was obtained in January 2018. The claims file was reviewed and the examiner opined that it was less likely than not that the Veteran had a respiratory disorder which was incurred in or otherwise causally related to his active service. Initially, the examiner noted that the Veteran did not have asbestosis and that this was evidenced by the fact that there was a normal CT of his lungs, which is considered the diagnostic gold standard in assessing the presence of asbestosis. Further, the Veteran did not have mesothelioma or asbestos plaques on the pleura or lung tissue. The examiner explained that the only other lung disability known to be produced by asbestos was interstitial pulmonary fibrosis. However, such was easily ruled out in the instant matter due to normal CT scan and normal CO2 diffusion in pulmonary function tests (PFT). The examiner also observed that the Veteran's lungs were normal upon separation, as evidenced by the March 1971 Report of Medical Examination and that an April 1977 physical examination, performed after the Veteran complained of recurrent chest pain, also revealed normal lungs. Further, the Veteran's military occupational specialty (MOS) of radioman had a low probability of exposure to asbestos. Rather, the examiner noted that the Veteran was presently diagnosed with asthma, and that asthma was not caused by asbestos exposure, as the Veteran did not suffer from asbestosis, as discussed above. The examiner further explained that exposure to environmental hazards such as asbestos, black oil, JP-5, and aviation gas may produce damage to lung tissues; however, this damage occurred within the first few days and weeks following such exposure. While long-term damage could be produced, the damage would be manifested in the earlier stages of the exposures; it was "inconceivable that a person would be totally asymptomatic for several years and then develop respiratory problems after having perfectly normal lung function." The examiner concluded that the Veteran had a normal pulmonary examination at separation from service in 1971 and several years later in 1977. The Board finds the January 2018 VA examination report to be highly probative, sufficiently rationalized, and is based on thorough review of the record. There are no competent medical opinions to the contrary. The Board has considered the April 9, 1977 report of sudden mild chest pain to his physician. The x-ray imaging showed his heart size and shape were normal, lungs were clear, esophagus appeared normal without unusual deviation, the restrosternal area was not unusual, and there was no evidence of lymphadenopathy. An April 28, 1977 treatment note indicated the reported chest pain was "probably of [the] musculoskeletal type" because the Veteran is a nonsmoker, has no family history of coronary artery disease, is not obese, Mantoux tuberculin skin testing appeared negative, and he had normal serum lipids. There are no competent opinions to the contrary. The Veteran also reported experiencing chest pain in 1982. His treating physician stated that this pain was probably caused by reflux. The Veteran's lungs were clear, and his nose, throat, neck, chest, and conjunctiva were within normal limits. Furthermore, the Veteran underwent a CT scan on March 25, 2014 which showed his lungs were clear and there were no pulmonary nodules, masses, infiltrates, or pleural effusions. The results indicated clear lungs. As such, the Board finds that the Veteran's reports of chest pain in 1977 and 1982 were not related to a respiratory illness. (Continued on the next page) Consideration has also been given to the Veteran's assertion that exposure to chemicals during service caused a respiratory illness, including asbestosis and asthma. However, while lay persons are competent to provide opinions on some medical issues, the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Respiratory illnesses, asbestosis, and asthma are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the preponderance of the evidence weighs against a finding of direct service connection. The medical opinion simply does not support the conclusion that the Veteran's respiratory disability was caused by service. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, Associate 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.