Citation Nr: 18132329
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-04 892
DATE:	September 6, 2018
ORDER
New and material evidence was received to reopen entitlement to service connection for a skin disability.
Entitlement to service connection for a skin disability is denied.

REMANDED
Entitlement to service connection for a psychiatric disorder is remanded.
Entitlement to service connection for hypertension, to include as due to a psychiatric disorder is remanded.
FINDINGS OF FACT
1. A March 2008 RO decision that denied service connection for a skin disability was not appealed and the decision became final.
2. New and material evidence has been received since the March 2008 decision to substantiate the claim of entitlement to service connection for a skin disability.  The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim.
3. The preponderance of the evidence is against finding that the Veteran has a current skin disability related to a disease or injury in service, to include non-specific skin rashes.
CONCLUSIONS OF LAW
1. The March 2008 rating decision that denied the Veteran’s claim of entitlement to service connection for a skin disability is final.  38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018).
2. The criteria to reopen service connection for a skin disability have been met.  38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. § 3.156 (2018).
3. The criteria to establish service connection for a skin disability have not been met.  38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran, who is the appellant in this case, had service from October 1963 to October 1967.
In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file.
1. Claim to reopen service connection for a skin disability.
The Veteran originally filed a claim for entitlement to service connection for a skin disability in November 2007.  The RO initially denied the claim in a March 2008 rating decision on the grounds that there was no evidence of a chronic skin disability or that the current diagnosis was related to service.  The Veteran did not appeal this decision and it became final as to the evidence then of record, and is not subject to revision on the same bases.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103.  
The evidence received since the March 2008 rating decision includes evidence that is both new and material to the claim.  See 38 C.F.R. § 3.156 (2018).  The evidence has been received by VA that had not previously been associated with the file that discusses the possibility of a nexus for this disability.  For example, August 2017 Board hearing testimony from the Veteran details his symptoms of skin treatment during service and an explanation that his symptoms have continued since service.  A May 2013 VA skin examination also discussed the possibility of a nexus.  The credibility of this evidence is presumed for purposes of reopening the claim.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  As these documents represent evidence not previously submitted to agency decision makers and relates to an unestablished fact necessary to substantiate the claim, the claim is reopened and will be considered on the merits.
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. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018).  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.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 
The Veteran has claimed that his skin disability may be related to herbicide agent exposure.  Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313.  This presumption may be rebutted by affirmative evidence to the contrary.  38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309.  
The exclusive list of diseases which are covered by this presumption include, in relevant part, chloracne or other acneform disease consistent with chloracne.  38 C.F.R. § 3.309(e).  However, this provision does not apply to the Veteran’s claim because while herbicide agent exposure is conceded, his current skin disability has not been shown to be associated with chloracne or other acneform disease consistent with chloracne. 
In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011). 
The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997.  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability.  Id. at 1076.  The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000). 
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007).
2. Entitlement to service connection for a skin disability
The Veteran contends that he was treated for a skin disability during service that has continued since separation and is related to his current skin disability.
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that, while the Veteran has a current diagnosis of spongiotic dermatitis with lichen simplex chronicus with no functional limitations, and evidence shows that different diagnosed skin disabilities occurred in-service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of spongiotic dermatitis with lichen simplex chronicus began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
Private treatment records show the Veteran was not treated or diagnosed with a skin disability until February 2004, almost four decades after his separation from service.  Moreover, a November 2007 VA treatment record shows the Veteran’s endorsement of periodic skin rashes on his legs since approximately 1992, at the latest.  While the Veteran is competent to report having experienced symptoms of skin rash intermittently since service, he is not competent to provide a diagnosis in this case or determine that the in-service treatment and symptoms were manifestations of his currently diagnosed skin disability.  The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  
Service treatment records show treatment in November 1964 for a “spotting rash over areas where his skin contacts bed blankets” and a diagnosis for skin rash.  In October 1966, the Veteran received a dermatology consult and for a rash over his body that occurred after taking a cold shower and then scratching the skin area.  The provisional diagnosis was for an allergy to shower water content and the final diagnosis was malaria rubra (heat rash) with recommended conservative treatment.  The September 1967 separation examination did not reveal any skin abnormalities and the Veteran affirmatively denied any skin conditions on his contemporaneous Report of Medical History.
Private treatment records from September 2004 to February 2006 reveal treatment for rashes on the legs, arms, and chest due to allergic reactions.  VA treatment records from November 2007 indicate the Veteran reported periodic development of a rash on the lower legs associated with itching for the last 10 to 15 years.  At this time, he was assessed to have lichen simplex chronicus and dry skin.  A February 2008 VA dermatology clinic note assessed nummular eczema and tinea pedis.  A May 2008 VA skin biopsy revealed a diagnosis for nummular dermatitis.
On VA examination in May 2013, the Veteran endorsed experiencing a patch of red, itchy skin on the left lower extremity.  He said the skin condition “would wax and wane and would switch legs or be present on both legs.”  The Veteran stated that in more recent years the affected area has turned a darker color than the surrounding skin.  He said that he sought treatment for this skin condition and thought he was diagnosed with eczema.
However, the May 2013 VA examiner opined that the Veteran’s skin disability is not caused by or related to skin conditions shown during service.  The examiner explained that the Veteran was treated in-service for non-specific skin rashes during service that were associated with bedding material, sunburn, and heat rash (malaria rubra).  Post-service, the examiner noted that the Veteran was treated for a skin rash on the bilateral lower extremities, which was first recorded in 2004.  The examiner pointed out that in 2008, a skin biopsy diagnosed the Veteran spongiotic dermatitis.  According to the examiner, the Veteran’s skin conditions shown during service were transient, acute conditions with known etiology and noted to be resolved at the time of the separation examination.  The examiner explained that a preponderance of medical literature does not support a nexus between resolved transient allergic skin rash, sunburn, or heat rash and the development of dermatitis nearly four decades later.  The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
The Veteran testified before the undersigned in August 2017.  He stated that he was treated in service for skin rashes that have continued to affect him since separation.  He said that a private doctor diagnosed him with eczema in approximately 1968.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories.  See Pond v. West, 12 Vet. App. 341 (1999).
While the Veteran believes his currently diagnosed skin disability is related to an in-service injury, event, or disease, including treatment for non-specific skin rashes, he is not competent to provide a nexus opinion in this case.  This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the May 2013 VA examination opinion.
After a full review of the record, the weight of the evidence demonstrates that the currently diagnosed skin disability did not have its onset in service and is not otherwise related to service for the reasons discussed above.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
REASONS FOR REMAND
1. Entitlements to service connection for a psychiatric disorder and hypertension, to include as due to a psychiatric disorder is remanded.
The March 2013 VA examiner noted that the Veteran had one of three reported stressors that met Criterion A to support a diagnosis for PTSD, but then incorrectly dismissed it because the examiner did not think it related to fear of hostile military or terrorist activity because the incident involved an American airplane that lost a bomb.  However, for purposes of 38 C.F.R. § 3.304 (f)(3), “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device (IED); vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f)(3).  Notably, this regulation does not exclude such type of fear based on incidents involving the same side in a conflict.  Furthermore, the examiner utilized the DSM-IV-TR.  The newer DSM-V has now been officially released. An interim final rule was issued on August 4, 2014, which replaced the DSM-IV with the DSM 5. 79 Fed. Reg. 45093 (Aug. 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. Jurisdiction over the present appeal was conferred to the Board in April 2016. Thus, the newer DSM 5 applies to the present case. As a result, another VA examination is necessary to determine if the Veteran has a psychiatric disorder related to service.

The Veteran has claimed that his hypertension was due to his psychiatric disorder, but the Board cannot make a fully-informed decision on the issue because no VA examiner has made an opinion on this theory of entitlement.  Furthermore, this issue cannot be adjudicated until the service connection for a psychiatric disorder is addressed because they are intertwined.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).
Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disabilities.  Colvin v. Derwinski, 1 Vet. App. 171 (1991).  In light of the above, the Board finds that new VA examinations opinions must be obtained for the bilateral ankle and bilateral foot disabilities.
The matters are REMANDED for the following action:
1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD).  
(a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria under the DSM-5 are met and opine whether it is at least as likely as not related to a verified in-service stressor, which may also be established by lay testimony alone in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service.  
(b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease.  
2. Obtain an addendum opinion from an appropriate clinician regarding the following:
(a.) whether the Veteran’s hypertension is at least as likely as not proximately due to a psychiatric disability, to include medication used to treat this disability.
(b.) whether the Veteran’s hypertension is at least as likely as not aggravated beyond its natural progression by a psychiatric disability, to include medication used to treat this disability.
 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Connally, Associate Counsel 

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