Citation Nr: 22017147 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-19 509 DATE: March 24, 2022 ORDER New and material evidence having been received, the claim for entitlement to service connection for a skin disability other than dermatophytosis is reopened. To this extent only, the claim is granted. Entitlement to service connection for hypertension, as secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for a back disability is denied. Entitlement to service connection for sciatica of the bilateral lower extremities is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for a skin disability other than dermatophytosis is remanded. FINDINGS OF FACT 1. In a final rating decision in September 2015, the RO denied service connection for a skin disability of the arms and legs. 2. Evidence received since the September 2015 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a skin disability other than dermatophytosis and raises a reasonable possibility of substantiating the claim. 3. The Veteran's hypertension is aggravated by his service-connected PTSD. 4. The evidence of record persuasively weighs against finding that the Veteran has a present back disability that began during active service or is otherwise related to an in-service injury or disease. 5. The evidence of record persuasively weighs against finding that the Veteran's radiculopathy of the lower extremities began during active service or is otherwise related to an in-service injury or disease. 6. The evidence of record persuasively weighs against finding that the Veteran has a right knee disability that began during active service or is otherwise related to an in-service injury or disease. 7. The evidence of record persuasively weighs against finding that the Veteran has a left knee disability that began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The September 2015 rating decision that denied service connection for a skin disability to the arms and legs is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a skin disability other than dermatophytosis. 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for hypertension as secondary to service-connected PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(b). 4. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for sciatica of the bilateral lower extremities are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 7. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to November 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2017 and October 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In November 2020, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in July 2021 at which time the case was remanded for additional development. The matter is once again before the Board. I. New and Material Evidence Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when new and material evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial regardless of whether the denial was on the merits or on procedural grounds to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the record shows that in May 2017 the Agency of Original Jurisdiction (AOJ) reopened a final rating decision in September 2015 that denied service connection for exfoliative dermatitis (claimed as a skin condition to the bilateral arms and legs). Nevertheless, it is the Board's jurisdictional responsibility to consider whether a claim should be reopened regardless of what the AOJ has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). VA regulation defines "new and material evidence" as follows: "new evidence" means evidence not previously submitted to agency decisionmakers, and "material evidence" means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id.; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The basis of the AOJ's initial denial of service connection for a skin disability to the arms and legs in September 2015 is that there was no evidence of a link between the claimed skin disability and service. The AOJ also noted that the Veteran failed to report to a scheduled VA skin examination. See 38 C.F.R. § 3.655. The Veteran did not appeal this decision and new and material evidence was not received within one year of the decision. Therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. Evidence received since the September 2015 adverse rating determination includes a November 2017 VA skin examination report that reflects a diagnosis of exfoliative dermatitis which the examiner stated had been diagnosed in service in 1971. Although the examiner noted that the Veteran did not have any skin findings with respect to his arms and legs at the time of the examination, the Veteran testified in November 2020 that he experiences flare ups of the condition approximately four to five times a year. His testimony thus suggests that his skin condition is ongoing but not constant. This evidence is considered new as it was not previously considered and it is material since it goes to an essential element of service connection, i.e., it goes to the issue of a nexus between a present skin disability and service. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The claim is thus reopened. 38 C.F.R. § 3.156. II. Service Connection Claims A. Law and Regulations Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is warranted on a secondary basis for "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310 (b). B. Analysis 1. Hypertension The Veteran's service treatment records do not show that he had hypertension in service and the first medical evidence of the disability is many years after service. The Veteran and his representative testified at the November 2020 Board hearing that the nature of this claim is that the Veteran's hypertension is due to or aggravated by his service-connected PTSD. They remarked that the Veteran had difficulty adapting to stress and has other PTSD symptoms to include hypervigilance. A VA examiner in November 2021 diagnosed the Veteran as having hypertension with an onset date in 2018. She also noted that the Veteran was taking medication (Lisinopril, 20 mg) to treat the condition. She opined that there is no direct connection between PTSD and hypertension and that the connection was more directly related to poor sleep quality, obesity, increased stress and not a direct result of having PTSD. However, she also opined that the Veteran's hypertension was at least as likely as not aggravated beyond its natural progression by his PTSD. She explained that he had been started on medication for high blood pressure and that it remained poorly controlled and the Veteran's current level of severity for his hypertension was greater than the baseline which was no elevated blood pressure. In consideration of the foregoing, the Board finds that the evidence persuasively shows that Veteran's hypertension is aggravated by his service-connected PTSD and the claim is therefore granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310 (b). 2. Back, Radiculopathy of the Lower Extremities, Right and Left Knees The Veteran testified in November 2020 that he injured his back and knees in service when he was flung off of a gun mount into "c-plugs" while serving aboard a ship. He compared the incident to being flung into a bike rack. He said that he started hurting three or four days after that incident at which time he saw a medic who gave him a handful of "APC's" and told him to stay off of his feet as much as possible. He also said that he was restricted from active work for about two days. He went on to testify that the pain got so bad after about two weeks that he was sent to Subic Bay and then to the hospital at Clark Air Force Base where they took an X-ray which revealed an enlarged cyst that was on the verge of rupturing. He said that he underwent surgery for the cyst. He said that after service he self-medicated for several decades before receiving physical therapy from a friend. He also said that he took Codeine, but not from legitimate sources. He explained that the VA medical facility near him had long wait lists and it was hard to get an appointment. The Veteran's service treatment records do not document the gun mount fall injury or show complaints or treatment for lower extremity radiculopathy or knee problems. Regarding his back, his service treatment records show only one complaint for back pain in September 1974 related to a pilonidal cyst which was surgically excised. There are no other complaints in service regarding the Veteran's back. Moreover, he was found to have a normal neurologic clinical evaluation at his separation examination in November 1974 as well as normal clinical evaluations of his lower extremities and spine. The first post-service evidence of musculoskeletal complaints is decades after service, in December 2014, when the Veteran complained of back and right knee pain. He reported at that time that he had been hospitalized due to a fall from a gun mount and for a pilonidal cyst. Musculoskeletal and neurological findings at that time were unremarkable. It should be noted that when pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). In any event, while not dispositive, the passage of so many years between discharge from active service and objective documentation of a disability is a factor that weighs against a finding that the disability began during active service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). As far as medical nexus evidence, the only such evidence militates against the Veteran's claim. In this regard, a VA contract examiner in November 2021 remarked that the Veteran's pilonidal cyst had been treated in service and resolved and his current back, lower extremity radiculopathy, and knee conditions are not related to the incidents in service. She noted that he complained of back pain for four months in service and was found to have a pilonidal cyst which can be very painful. She also pointed out that records show one complaint of back pain in 2014. She explained that the Veteran's current complaints involving his back can occur as part of normal wear and tear and that his fall on the ship's deck is not the cause of the current findings with respect to his back or radiculopathy. She also reported with respect to the Veteran's knees that there is no documentation of knee complaints until 2014 when a history of knee surgery was mentioned on the right for a bone growth removal. This is the only medical nexus opinion on file. As far as the Veteran's belief that his back, lower extremity radiculopathy and knee conditions are related to his fall in service, he is not competent to render such an opinion. In this regard, as a lay person, he is competent to relate symptoms that may be associated with his back, lower extremity radiculopathy, and right and left knee disabilities; however, he is not shown to have the requisite medical knowledge, training, or experience to be able to attribute such symptoms to specific diagnoses or discuss the etiology of such diagnoses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). At the very least, his assertions as to a nexus between his present back, lower extremity radiculopathy, and knee conditions and service are outweighed by the VA contract medical opinion discussed above. The medical examiner's opinion is supported by rationale and is based on an accurate characterization of the evidence of record and is therefore probative. See Nieves-Rodrigue v. Peake, 22 Vet. App. 295, 304 (2008). For the foregoing reasons, the Board finds that the evidence persuasively weighs against the Veteran's claim for service connection for back, lower extremity radiculopathy, and right and left knee disabilities. As the evidence is not in approximate balance, the benefit of the doubt doctrine is not for application and the claims are denied. See 38 U.S.C.A. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). REASONS FOR REMAND Now that the Veteran's claim for service connection for a skin disability other than dermatophytosis is reopened, additional development is required before the Board can make a fully informed decision in this matter. As indicated above, the Veteran is service connected for dermatophytosis (claimed as bilateral foot fungus). Thus, the issue to be determined is whether he has a skin disability other than dermatophytosis that is related to service. He asserts that he was diagnosed in service as having exfoliative dermatitis which he still has. A November 1971 consultation sheet shows physical examination findings of exfoliative dermatitis of the right hand with fungal elements and it contains an impression of fungal infection of the right hand. It also shows that he was prescribed tinactin (an antifungal topical medication) and Griseofulvin (an oral antifungal medication). A VA examiner in April 2017 reported that the Veteran had been diagnosed as having exfoliative dermatitis in service, but he reported that the Veteran's skin on examination was normal regarding his hands and legs. A subsequent VA contract examiner (a nurse practitioner) in November 2021 diagnosed the Veteran as having exfoliative dermatitis with an onset date of 1978 which is after service. However, she went on to opine that he had exfoliative dermatitis in service that had been treated as a fungal infection and resolved. In December 2021, she issued an addendum opinion stating that the Veteran's exfoliative diagnosis in service was a misdiagnosis and that he actually had a fungal infection that was successfully treated in service and resolved. She said that his present dermatitis was a dryness on the skin of his lower legs that was itchy but without sloughing of tissue which would be present with exfoliative dermatitis. It is unclear from the opinions above whether the Veteran had exfoliative dermatitis or another skin disability in service other than dermatophytosis and, if so, whether it fully resolved or continues to persist. This is especially unclear when considering his hearing testimony that the condition flareups four to five times a year. Accordingly, in order to make a fully informed decision in this matter, the Veteran should be afforded a new examination performed by a dermatologist for the purpose of clarifying the nature and etiology of his skin disability. 38 U.S.C. §5103A(d). Lastly, the Veteran should be given another opportunity to submit pertinent, outstanding evidence to support this claim, to specifically include private medical records related to his treatment for a skin flareup on the back of his knees and under his armpits. See Board Hearing Transcript, page 11. The matters are REMANDED for the following action: 1. Conduct the appropriate development to identify and obtain any outstanding VA and private treatment records regarding the Veteran's skin disability and associate them with the claims file. 2. Then, schedule the Veteran for an examination by a dermatologist to determine the nature and etiology of his claimed skin disability other than dermatophytosis. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination of the Veteran and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran has a skin disability other than dermatophytosis, to include exfoliative dermatitis, which had an onset during the Veteran's active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms, particularly in the event that the Veteran is examined during a period of time when he is not currently experiencing an active outbreak of exfoliative dermatitis. A complete and detailed rationale for all opinions expressed must be provided. 3. Then, readjudicate the claim on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow 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. Shawkey, 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.