Citation Nr: 22017907 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 15-17 943 DATE: March 26, 2022 ORDER Service connection for left knee replacement is denied. Service connection for a skin disorder, to include as due to herbicide exposure, is denied. An initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. For the initial disability rating period on appeal, a 20 percent disability rating for hypertension is granted. REMANDED Service connection for a throat disorder, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam while on active duty and is presumed to have been exposed to Agent Orange. 2. The Veteran is currently diagnosed with left knee replacement and onychomycosis. 3. There was no left knee injury or disease during service. 4. The Veteran experienced non-chronic folliculitis, dermatitis, and acne during service that resolved by service separation, and did not experience onychomycosis during service. 5. The currently diagnosed knee disability that began after service and includes knee replacement is unrelated to active service. 6. There is no current skin disability of folliculitis, dermatitis, or acne. 7. Onychomycosis began after service and is not related to service, to include as due to in-service herbicide exposure. 8. For the entire initial rating period on appeal, the service-connected PTSD has not been characterized by total occupational and social impairment. 9. For the initial rating period on appeal, the service-connected hypertension was treated with continuous medication, and was manifested by a history of diastolic blood pressure of predominantly 110 or more. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee replacement have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for a skin disorder, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. For the initial rating period on appeal, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 4. Resolving reasonable doubt in favor of the Veteran, for the initial rating period on appeal, the criteria for a 20 percent disability rating, and no higher, for hypertension have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from September 1965 to June 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). This case was previously before the Board in October 2020 where the Board remanded the matters for the RO to readjudicate the issues on appeal by providing the Veteran and representative with a Supplemental Statement of the Case (SSOC). Subsequently, an October 2020 SSOC has been associated with the record. 1. Service Connection for Left Knee Replacement is Denied. 2. Service Connection for a Skin Disorder is Denied. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. To establish presumptive service connection for a disease associated with exposure to certain herbicide agents, a veteran must show the following: (1) that he or she 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 or she currently suffers from a disease associated with exposure to certain herbicide agents enumerated 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, the 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 list of diseases associated with exposure to certain herbicide agents does not include colon cancer. See 38 C.F.R. § 3.309(e). As onychomycosis (fungal infection of the nails) is not included in the list of diseases associated with exposure under 38 C.F.R. § 3.309(e), the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran contends that service connection for skin disorder is warranted as a result of exposure to herbicide during service. The Veteran also contends that service connection for a left knee disorder is warranted. Initially, the Board finds that the evidence shows a current left knee replacement and onychomycosis (fungal infection of the toenails), as various VA treatment records reflect such a diagnosis. See also June 2019 VA skin examination report. The weight of the evidence shows no other current skin disorders, including no folliculitis, dermatitis, and acne. Next, the Board finds that the Veteran had qualifying "service in Vietnam"; therefore, exposure to herbicide agents during service may be presumed. Service personnel records reflect that the Veteran served in Republic of Vietnam during the Vietnam War. As such, exposure to herbicide agents during service is presumed. 38 C.F.R. § 3.307. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence shows no relevant in-service knee injury, disease, or event. The service treatment records are complete, and contain no complaints, symptoms, findings, diagnosis, or treatment related to a knee disorder. The June 1967 service separation examination report reflects the knees were evaluated as normal. The service treatment records show non-chronic folliculitis, dermatitis, and acne during service that resolved by service separation, but do not include any symptoms, findings, diagnosis of, or treatment for onychomycosis (fungal infection of the nails). The June 1967 service separation examination report reflects the skin was evaluated as normal. The June 1967 report of medical history reflects the Veteran reported sinusitis, frequent seizure or headache, shortness of breath, high or low blood pressure, and a history of broken bones, but did not similarly report any knee injury or symptoms of onychomycosis. Had the Veteran experienced knee or onychomycosis symptoms, he would have similarly reported these in service, just as he did report skin symptoms of folliculitis, dermatitis, and acne. The weight of the evidence shows no current skin disorders of folliculitis, dermatitis, or acne. The June 2019 VA examiner noted that the service treatment records reflect treatment for folliculitis, dermatitis, and acne, but concluded there were no current diagnoses for folliculitis, dermatitis, and/or acne. With regard to the currently diagnosed onychomycosis, the VA examiner noted that onychomycosis began approximately two years after service, and opined that onychomycosis was unrelated to service. The service treatment records, which are complete, reflect that the Veteran was treated for other symptoms and disorders during service, of which he did complain and seek treatment, though he did not report any such related problems or symptoms regarding the left knee or onychomycosis. Such in-service complaints reported or for which the Veteran knew how to, and did, seek treatment include plantar warts, an upper respiratory infection, mosquito bites, folliculitis, dermatitis, and acne. As such, the complete service treatment records in this case, which were generated contemporaneous to service, are likely to accurately reflect the Veteran's physical condition. The service treatment records in this case are of significant probative value because the Veteran was treated on multiple occasions for the complaints or disorders listed above, so would similarly have reflected any complaints or treatment for a knee disorder or onychomycosis had such occurred during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). Regarding the theory of direct service connection as to the left knee replacement, the weight of the evidence demonstrates no in-service left knee injury or disease or even event to which the current left knee disorder could be related. As analyzed above, the weight of the evidence shows no left knee symptoms during service and that the Veteran did not even experience relevant symptoms of a left knee injury or disease during service. On the question of direct nexus between the current skin disorder of onychomycosis and service, the weight of the evidence is against finding a nexus between the skin disorder that appeared after service diagnosed as onychomycosis and the herbicide exposure during service. The June 2019 VA examiner opined that the onychomycosis was less likely than not related to service, to include the in-service herbicide exposure. The June 2019 VA examiner reasoned that, while the service treatment records reflect treatment for folliculitis, dermatitis, and acne, the current diagnoses did not include folliculitis, dermatitis, and acne and that the currently diagnosed onychomycosis of the toenails, a fungal infection, began after separation from service. The June 2019 VA examiner also reasoned that a fungal infection like onychomycosis was unrelated to herbicide exposure. The Board finds that the June VA examiner's opinion is highly probative as it is based on an accurate history of past symptoms and findings as shown by the record, with supporting rationale. The Board has considered the Veteran's contentions that currently diagnosed knee and skin disorders are related to service, to include the in-service exposure to herbicides for the skin disorder; however, the Veteran is a lay person who, under the specific facts of this case, which include a normal service separation examination of the knees and skin, the Veteran's contemporaneous denial of knee and skin symptoms at service separation, and no knee or skin symptoms continuously after service, does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the diagnosed knee and skin disorders. The etiology of post-service onset of onychomycosis in this case is a complex medical etiological question dealing with the origin and progression of the dermatological system, and is diagnosed in part on clinical findings and testing and ability to distinguish skin disorders one from another, in addition to general symptoms such itching or visual appearances. See McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (a veteran is competent observe skin conditions such as boils, blotches, and rashes). Thus, while the Veteran is competent to report knee and skin symptoms experienced at any time, under the facts of this case that include not having reported knee or skin symptoms at service separation or until years after service, he is not competent to opine as to whether there is a link between any of the currently diagnosed knee and skin disorders and service, including to herbicide exposure as to the skin disorder. For these reasons, service connection for a knee and skin disorder must be denied. 3. An Increased Disability Rating in Excess of 70 Percent for PTSD is Denied. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. The psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Pertinent in this case, the General Rating Formula provides that a 70 percent rating will be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Veteran contends generally that the service-connected PTSD has been manifested by more severe symptoms and occupational and social impairment than contemplated by the 70 percent disability rating assigned. After a review of all the lay and medical evidence, the Board finds that, for the entire initial rating period on appeal, the weight of the evidence shows that the level of occupational and social impairment due to PTSD symptoms have not met or more nearly approximated the criteria for a higher 100 percent disability rating. See 38 C.F.R. § 4.130. For the rating period on appeal, the weight of the lay and medical evidence persuasively weighs against finding total occupational and social impairment for any period. The weight of the evidence does not show symptoms suggestive of total occupational and social impairment, such as gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, that would approximate the requirements for a 100 percent disability rating under Diagnostic Code 9411. A review of the relevant lay and medical evidence, including VA treatment records, the June 2019 VA examination report, and lay statements, does not reveal that the Veteran has experienced total occupational and social impairment. Specifically, the June 2019 VA examination report reflects the Veteran reported having friends and hobbies. The June 2019 VA examiner opined that the psychiatric disorder manifested as occupational and social impairment with deficiencies in most areas, which is consistent with the criteria for a 70 percent rating. For these reasons, the weight of the competent and probative lay and medical evidence of record is against a rating in excess of 70 for the service-connected PTSD. 4. An Increased Disability Rating of 20 Percent for Hypertension is Granted. The Veteran is in receipt of a noncompensable (0 percent) disability rating for hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is assigned for diastolic pressure predominately 100 or more, or; systolic pressure predominantly 160 or more, or is the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating is assigned for diastolic readings of predominantly 110 or more or systolic readings of 200 or more. A 40 percent disability rating is assigned for diastolic readings of predominantly 120 or more. A 60 percent disability rating is assigned for diastolic readings of predominantly of 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Although the schedular criteria do not specifically outline any criteria for a noncompensable (0 percent) rating, the Board notes that a 0 percent rating is assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2016). After a review of all the evidence, lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the initial rating period, hypertension was treated with continuous medication, and manifested by a history of diastolic blood pressure approximately predominantly 110 or more. This combination of continuous medication and diastolic blood pressure levels more nearly approximates the criteria for a 20 percent disability rating under Diagnostic Code 7101. 38 C.F.R. §§ 4.3, 4.7, 4.104. Various VA treatment records reflect that the Veteran takes medication for hypertension, which helps control diastolic pressure. VA treatment records also reflect current blood pressure readings of 122/80, 147/88, 146/97, and 120/79. See October 2015, June 2015, May 2015, April 2015 VA treatment records. For these reasons, the Board finds that, based upon all the evidence, lay and medical, and resolving all reasonable doubt in favor of the Veteran, the service-connected hypertension was treated with continuous medication, and manifested by a history of diastolic blood pressure approximately predominantly 110 or more, which more nearly approximates the criteria for a 20 percent disability rating under Diagnostic Code 7101. 38 C.F.R. §§ 4.3, 4.7, 4.104. REASONS FOR REMAND 5. Service Connection for a Throat Disorder is Remanded. The Veteran specifically contends that a throat disorder is related to in-service herbicide exposure. The Veteran served in Vietnam during the Vietnam War, so is presumed to have been exposed to herbicides during service. The current diagnosis is esophagal reflux. See March 2016 VA treatment records. To date, no examiner has offered an opinion as to whether a throat disorder is related to herbicide exposure in service. An opinion as to whether a throat disorder, including the currently diagnosed esophageal reflux, is etiologically related to in-service herbicide exposure would be helpful in deciding this claim. The matter is REMANDED for the following action: Request a VA medical opinion. The relevant documents in the record should be made available to any examiner, who should indicate on the examination report that he/she has reviewed the documents. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should offer the following opinion with supporting rationale: Is it at least as likely as not (50 percent probability or greater) that the currently diagnosed throat disorder, to include esophagal reflux, was caused by in-service herbicide exposure? In rendering the direct service connection opinion requested, the VA examiner should assume, as fact, that the Veteran was exposed to herbicides during service. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.