Citation Nr: 22051167 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 16-04 396 DATE: September 8, 2022 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for dermatitis, right leg, is remanded. Entitlement to service connection for dermatitis, left leg, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 1965 to March 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal from June 2012 and August 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office. In February 2019, the Veteran testified at a Board videoconference hearing before the undersigned. In July 2019, the Board remanded the case to the RO for additional development of the claims addressed herein. An October 2020 Board decision denied the claims, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). A January 2022 CAVC Order granted a January 2022 Joint Motion for Remand (JMR) of the parties, thereby vacating the Board's decision and remanding the matters to the Board for action consistent with the terms of the JMR. 1. Entitlement to service connection for an acquired psychiatric disorder The parties to the January 2022 JMR agreed that the December 2019 VA medical nexus opinion did not substantially comply with the Board's July 2019 remand directives and that a new medical opinion was necessary. Specifically, the parties found the opinion contained inadequate rationale. In finding that the Veteran's psychiatric disabilities were "currently in remission," the examiner did not furnish an opinion for any disability that has existed since the date of the claim, as requested in the remand, and did not address evidence that the Veteran continued to receive treatment including prescription medications from a VA psychiatrist. The examiner also did not provide a well-reasoned explanation for whether any current disability was related to service to include witnessing an in-service death, as requested in the remand. In an April 2022 statement, the Veteran also raised the issue of service connection for a psychiatric disability on a secondary basis, citing VA and private treatment records that suggest mental health issues were caused by service-connected disabilities including diabetes mellitus, peripheral neuropathy, and erectile dysfunction. 2. Entitlement to service connection for dermatitis, right leg; and 3. Entitlement to service connection for dermatitis, left leg The parties to the January 2022 JMR agreed that the December 2019 VA medical nexus opinion did not substantially comply with the Board's July 2019 remand directives and that a new medical opinion was necessary. Specifically, the parties found the opinion did not contain a well-reasoned explanation to support the unfavorable (to the claims) conclusions, which should have also addressed whether in-service exposure to herbicide agents could have caused the Veteran's current bilateral leg dermatitis. The matters are REMANDED for the following action: 1. Obtain for association with the claims file updated (since July 2021) records of VA evaluations and/or treatment the Veteran has received for a psychiatric disorder and a skin disability affecting the legs. 2. Obtain an advisory medical opinion from a physician regarding the etiology of any current (since the date of the filing of the claim in January 2011) psychiatric disability of the Veteran. The claims file and a copy of this remand should be reviewed by the examiner. The examiner should respond to the following: (a). For each diagnosed psychiatric disability, opine whether it is at least as likely as not (i.e., likelihood is approximately balanced or nearly equal, if not higher) that any such disability is either etiologically related to the Veteran's period of service from March 1965 to March 1968, to include as a result of the Veteran's reported death that he witnessed and his military occupational specialty, or manifested within the first post-service year. (b). For each diagnosed psychiatric disability, opine whether it is at least as likely as not (i.e., likelihood is approximately balanced or nearly equal, if not higher) that any such disability is caused or aggravated (worsened in severity beyond its natural progression) by a service-connected disability, to include diabetes mellitus, peripheral neuropathy, and/or erectile dysfunction. (The examiner should address both causation and aggravation.) (c). Consider, and address as necessary, the following: lay statements of record, to include the Veteran's contentions that his psychiatric disability was due to active service because he was under extreme stress to clean and prepare for shipment several supplies sent to Vietnam (see his December 2011 statement) and his testimony that he would dream about seeing the man killed in the fatal car accident he saw during service (see February 2019 Board hearing); VA outpatient notes showing mental health diagnoses with findings that the Veteran's symptoms of nightmares and intrusive memories of a fatal car accident he witnessed in Okinawa had increased (see April 2016 mental health note, November 2016 mental health primary care note, May 2017 social work notes, and June 2017 social work note); and VA and private records indicating service-connected disabilities were impacting his mental health (see November 1994 private treatment record regarding impotence inducing depression and May 8, 2017 VA social work consult reflecting disabilities of diabetes and neuropathy causing him stress). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the assertions made by the Veteran. Neither his credibility nor any lack thereof should be presumed in this remand. The examiner should provide a complete rationale for all opinions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by him, the examiner should provide a fully reasoned explanation. The examiner should note that the absence of documentation of complaints referable to the claimed disability during or after service cannot be the only basis for rejecting a possible nexus to service but it can be considered along with other evidence, including an opinion as to likely [alternate] etiology (beyond any assertion that there was no documentation of the disability in or after service). 3. Obtain an advisory medical opinion from a physician regarding the etiology of any current (since the date of the filing of the claim in September 2010) skin disability of the Veteran's right and left legs. The claims file and a copy of this remand should be reviewed by the examiner. The examiner should respond to the following: (a). For each diagnosed skin disability, opine whether it is at least as likely as not (i.e., likelihood is approximately balanced or nearly equal, if not higher) that any such disability is etiologically related to the Veteran's period of service from March 1965 to March 1968, to include his (conceded) exposure to herbicide agents during service in Okinawa. (b). Consider, and address as necessary, the following: lay statements of record, to include the Veteran's contentions that he has had a rash on both legs since service in Okinawa when he had a chemical spill to his legs and was treated with creams, and that his treatment continued after service although records of his post-service treatment are unavailable (see Veteran's August 2006 statement and his February 2019 hearing testimony); his cousin's statement, dated in March 2022, to the effect that he saw the Veteran with "skin like sores" on his arms and legs when the Veteran returned from Vietnam and that the sores have persisted since then; and the September 2012 medical statement from Dr. G.P., who expressed his thoughts concerning the possibility of service connection for the Veteran's bilateral leg condition as being "probable." In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the assertions made by the Veteran. Neither his credibility nor any lack thereof should be presumed in this remand. The examiner should provide a complete rationale for all opinions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by him, the examiner should provide a fully reasoned explanation. The examiner should note that the absence of documentation of complaints referable to the claimed disability during or after service cannot be the only basis for rejecting a possible nexus to service but it can be considered along with other evidence, including an opinion as to likely [alternate] etiology (beyond any assertion that there was no documentation of the disability in or after service). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.