Citation Nr: 22005697 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 15-11 345 DATE: February 2, 2022 ORDER Service connection for a back disability, to include degenerative disc disease, is denied. Service connection for posttraumatic stress disorder is denied. REMANDED Service connection for hypertension is remanded. Service connection for an acquired psychiatric disability, not including posttraumatic stress disorder, is remanded. Entitlement to an initial compensable disability rating for service-connected bilateral tinea pedis/tinea unguium is remanded. FINDINGS OF FACT 1. The Veteran's back disability, to include degenerative disc disease, was not shown as chronic in service, nor was a back disability, to include degenerative disc disease, noted within one year from service discharge, and the disability is not otherwise etiologically related to active service. 2. The evidence of record weighs against finding that the Veteran has been diagnosed with posttraumatic stress disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for back disability, to include degenerative disc disease, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for posttraumatic stress disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1964 until his honorable discharge in January 1966. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board appeal from a July 2013 decision issued a Regional Office of the United States Department of Veterans Affairs (VA). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In July 2018, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to attempt to corroborate the Veteran's cited stressors associated with his psychiatric disabilities, to obtain any outstanding VA and private medical records, and to afford the Veteran medical examinations addressing his disabilities. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3 (disability rating). "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, ___ F.4th ___, 2021 U.S. App. LEXIS 37307, at *11; 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. 1. Service connection for a back disability, to include degenerative disc disease, is denied. First element: A current disability As to the first element of service connection, a current disability, the Veteran received a VA examination in March 2021. That examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine by X-ray as of 2003. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran believes that his lumbar spine disability is attributable to his active military service. He stated that during his active military service he was required to lift and carry heavy boxes to and from warehouses as part of his military occupational specialty (MOS) as a supply handler, thus placing strain on his back. The Board finds the Veteran's described duties are consistent with those associated with his MOS. He also stated that he had back pain after returning to the United States after service in Vietnam, which he attributes to his MOS duties. The Board finds the Veteran's statements credible and probative. Therefore, the Board finds the second element is satisfied; the Veteran experienced an in-service event associated with his MOS and had an onset of back pain in service. Third element: A causal link Degenerative disc disease, also commonly referred to as arthritis, is characterized by VA regulations as a "chronic disease." For chronic diseases listed under 38 C.F.R. § 3.309(a), including arthritis, service connection may be presumed if the evidence is sufficient to identify the disease entity and to establish chronicity in service, or if the disease manifested to a compensable degree within the first post-service year, or if the evidence shows continuity of symptomatology since service, unless the chronic disease is "clearly attributable to intercurrent causes." See 38 C.F.R. §§ 3.303(b), 3.307(a); Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 26668 (2015); see also 38 C.F.R. § 3.307(d) (providing how the presumption of service connection may be rebutted). The Veteran's in-service medical records do not indicate that he was diagnosed with arthritis in his back during his military service. His January 1966 separation exam is silent for any medical conditions related to his back, and he did not indicate experiencing any back issues at that time. He indicated that following his active service he sought medical treatment for back pain at a private medical facility. Unfortunately, due to the gap in time, any of his medical records around his separation from military service have been destroyed pursuant to that medical provider's internal procedures. There are no medical records that document a diagnosis of back arthritis within one year of the Veteran's discharge from service. The Board acknowledges the Veteran's lay statements about back pain in and following service, but he is not competent to diagnose himself with arthritis because such a diagnosis requires particularized medical knowledge and training. In addition, the Veteran's medical records do not document continuous back pain since service, nor do the Veteran's lay statements credibly establish a continuity of back pain or similar symptoms since service, but rather sporadic issues. As there is a lack of competent, credible, and probative evidence of record indicating chronicity or continuity of symptoms associated with back arthritis, presumptive service connection is not available. Even though a presumptive service connection is precluded for the Veteran's back arthritis, a grant of service connection may still be made on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the VA Regional Office obtained an opinion from a VA examiner in March 2021 addressing the etiology of the Veteran's back disability. The examiner opined that the Veteran's back disability was less likely than not incurred in or caused by his military service. She reasoned that, after considering the Veteran's military and medical history, as well as his lay statements about his military service and onset of back issues, his degenerative disc disease was part of the normal progression of aging and not due to trauma. She supported her conclusion by noting that the Veteran's degenerative arthritis was not diagnosed until 2003, approximately 37 years after his military service ended. His lumbar X-ray, completed in December 2003, showed no evidence of trauma, which would have been present on the X-ray. When that evidence is combined with the lack of in-service back issues, the examiner concluded that the Veteran's degenerative disc disease was consistent with normal aging. The Board finds this opinion and rationale highly credible and probative. As there is no other medical opinion of record contradicting the VA examiner, the Board finds that the third element, a causal, link has not been met. Accordingly, service connection for a back disability, to include degenerative disc disease, is denied. 2. Service connection for posttraumatic stress disorder is denied. Service connection for posttraumatic stress disorder (PTSD) is governed by 38 C.F.R. § 3.304(f), which requires: (1) medical evidence diagnosing the condition in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by the medical evidence, between current symptoms and an in-service stressor. First element: A current disability under the DSM-5 In the context of service connection for an acquired psychiatric disability, to include PTSD, the "current disability" requirement must be proven with evidence diagnosing the condition in accordance with the DSM-5. See 38 C.F.R. §§ 3.304(f), 4.125(a). The Veteran received two VA examinations addressing his psychiatric conditions, one in July 2013 and another in November 2021. Each examiner concluded that the Veteran did not have PTSD. Because the Veteran's claim for service connection was pending before the VA Regional Office prior to August 4, 2014, mental evaluations were conducted under the DSM-IV at that time. See 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014) (cases pending prior to August 4, 2014, were evaluated under the DM-IV, and those pending before the agency of original jurisdiction on or after August 4, 2014, shall employ the DSM-5). Regardless of application of the DSM-IV or DSM-5, the Veteran did not have PTSD. The Board recognizes that the Veteran's medical records reference a diagnosis PTSD. See, e.g., June 2021 VA Psychiatry Telephone Encounter Note. This "diagnosis," however, was not made pursuant to a mental health examination conducted by an appropriate mental health professional. Instead, on review of his medical records, VA and private, they indicate that the Veteran reported experiencing PTSD and his medical providers recorded "PTSD by history." See, e.g., October 2016 VA Psychology Note (documenting PTSD by histor); December 2016 VA Psychology Note (same); May 2018 VA Psychology Note (same). In sum, the Veteran's own report of PTSD symptoms is not the equivalent of having PTSD during the pendency of the claim, i.e., from approximately 2012. There is a lack of evidence for a formal diagnosis of PTSD by a mental health professional consistent with the DSM-IV or V for the appropriate timeframes. Therefore, in the absence of a diagnosis of PTSD, the first element is not satisfied. Second element: An in-service stressor In the interest of completeness, the Board addresses the second element, which also precludes service connection for PTSD. If a claimant is not a combat veteran, his or her claimed in-service stressor must be corroborated by credible supporting evidence. 38 C.F.R. § 3.304(f). A veteran's lay testimony alone generally is insufficient proof of a noncombat stressor, see Sizemore v. Principi, 18 Vet. App. 264, 270 (2004); Moreau v. Brown, 9 Vet. App. 389, 396 (1996), unless he falls under certain exceptions, see 38 C.F.R. § 3.304(f)(1)(4) (allowing the veteran's testimony alone to establish in-service PTSD stressors when the veteran's PTSD is diagnosed during service, the veteran engaged in combat with the enemy, the veteran's stressor is related to hostile military or terrorist activity, or the veteran was a prisoner of war). Evidence of changes in behavior may corroborate the occurrence of a stressor only when the PTSD claim is based on an in-service personal assault. 38 C.F.R. § 3.304(f)(5). Although the Veteran served in Vietnam, there is no evidence he engaged in combat. His MOS was as a supply handler. His military records do not indicate any awards or accolades typically associated with combat experience. Consequently, the Veteran's assertion that his service in Vietnam, in general, caused him PTSD must be corroborated. In review of all relevant evidence, the Board finds no evidence to corroborate that he experienced any in-service trauma based on his general service in Vietnam due to combat. In addition to his general service, he points to one particular incident when a fellow soldier who bunked with him pointed a rifle at his head. He stated that he felt in fear for his life. As this event was not due to "fear of hostile military or terrorist activity," 38 C.F.R. § 3.304(f)(3) (emphasis added), corroborating evidence is still necessary. There is no evidence of record corroborating this event. The Veteran failed to provide necessary information to assist the VA Regional Office in developing his stressor. Nor has any mental health professional diagnosed this event as an adequate "stressor" to support a diagnosis of PTSD. Accordingly, even if the Veteran's had a diagnosis of PTSD, service connection would still be precluded for lack of credible evidence of an in-service stressor. In sum, service connection for PTSD cannot be granted because the first two elements are not satisfied. REASONS FOR REMAND 1. Service connection for hypertension is remanded. In August 2021, the VA Regional Office issued a memorandum conceding that the Veteran was exposed to herbicide agents during his service in Vietnam. Although the Veteran has not raised herbicide-agent exposure as a basis for his claim for service connection for hypertension, the Board finds it is reasonably raised by the record. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). While hypertension is not one of the presumptive conditions listed in 38 C.F.R. § 3.309(e) that are associated with exposure to herbicide agents, service connection may be established on a direct basis. Prior to 2018, the National Academy of Sciences (NAS) categorized the scientific evidence regarding an association between herbicide agents and hypertension as "limited or suggestive." See 79 Fed. Reg. 20,308 (Apr. 11, 2014). Most recently, the NAS upgraded its association determination between hypertension and herbicide-exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide-agent exposure. Veterans and Agent Orange: Update 11 (2018). Therefore, the Veteran's presumptive exposure to herbicide agents may be linked to his hypertension. No opinion has been obtained addressing this issue. Thus, remand is required to obtain one. 2. Service connection for an acquired psychiatric disability, not including posttraumatic stress disorder, is remanded. As stated, psychiatric disabilities must be diagnosed pursuant to the DSM-5. 38 C.F.R. § 4.125(a). During his November 2021 VA examination, the examiner diagnosed the Veteran with major depressive disorder. The examiner opined that his major depressive disorder was not related to his military service because it was not diagnosed until 2014, approximately 48 years after separation from military service. This reasoning is insufficient. The examiner did not explain why the date of diagnosis was dispositive, or relevant for that matter. Furthermore, the examiner did not discuss any of the Veteran's lay assertions, medical history, or military experiences in relation to this mental disorder. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that an examiner's opinion relying on the absence of contemporaneous medical evidence "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"); See Dalton v. Peake, 21 Vet. App. 23, 3940 (2007) (a medical opinion is inadequate if it does not take into account a veteran's reports of symptoms and history, even if recorded in the course of the examination); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). Therefore, remand is required for an addendum opinion as there is no other competent evidence addressing the etiology of the Veteran's major depressive disorder. 3. Entitlement to an initial compensable disability rating for service-connected bilateral tinea pedis/tinea unguium is remanded. The Veteran's bilateral tinea pedis/tinea unguium (hereinafter referred to a "feet conditions"), is rated under 38 C.F.R. § 4.118, Diagnostic Code 7813. Relevant to the reason for remand, a disability rating may be awarded for "intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period," 38 C.F.R. § 4.118, Diagnostic Code 7813 (effective prior to August 13, 2018); "[i]ntermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period," 38 C.F.R. § 4.118, Diagnostic Code 7813 (effective August 13, 2018). Throughout the entire claim period, the Veteran's medical records documented that he treated his feet conditions with various prescription creams and oral medications, including but not limited to Lotrisone, Clotrimazole, Diflucan, and Lamisil. The VA examiners who evaluated the Veteran only identified his then-current medications. No medical professional has sufficiently identified all of the Veteran's medical treatments, nor have they identified if such medications are topical therapy or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. The Board finds remand is required to obtain an addendum opinion on the subject. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the November 2021 VA examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an addendum opinion addressing the onset and etiology of the Veteran's major depressive disorder. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's major depressive disorder had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include the experience in Vietnam where a fellow soldier held a rifle to the Veteran's head. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his psychiatric disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a psychiatric disability in service or the assertion that an in-service event, injury, or illness led to a current psychiatric disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, may be considered an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, may be considered insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. After any additional records are associated with the claims file, obtain an addendum opinion from the March 2021 VA examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an addendum opinion addressing the onset and etiology of the Veteran's hypertension. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include as due to exposure to herbicide agents while serving in Vietnam. The examiner is informed that VA has found that the Veteran was presumptively exposed to herbicide agents during his service in Vietnam. Please refer to the August 24, 2021, VA Memorandum for more information. In rending his or her opinion, the examiner MUST address the following, in addition to any other relevant evidence: (a.) The National Academy of Sciences determination to upgrade the association between hypertension and herbicide-exposure from "limited or suggestive" to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide-agent exposure. Veterans and Agent Orange: Update 11 (2018). The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of hypertension in service or the assertion that an in-service event, injury, or illness led to hypertension. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After any additional records are associated with the claims file, obtain an addendum opinion from the March 2021 examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the Veteran's use of medications to treat his tinea pedis/tinea unguium. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding the following: (a.) For the entire claim period, which began May 8, 2012, please identify all medications (prescription and nonprescription) topical, oral, and otherwise, used by the Veteran to treat his tinea pedis/tinea unguium. (b.) For each identified medication, please identify whether it constitutes (i) topical therapy; or (ii) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. For additional information, please refer to 38 C.F.R. § 4.118 (General Rating for the Skin). As of August 13, 2018, VA defines "topical therapy" as "treatment that is administered through the skin." 38 C.F.R. § 4.118(a). VA defines "systemic therapy" as "treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin." Id. (c.) Please identify whether any topical treatment operated by affecting the Veteran's body as a whole. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream. Burton v. Wilkie, 30 Vet. App. 286 (2018). For the examiner's information, this was the legal standard prior to August 13, 2018, when the regulations were amended. (d.) For each identified medication, please indicate the frequency at which it was used. If the examiner is unable to determine the frequency, this should be noted and explained. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.