Citation Nr: 1301657 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-03 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a chronic low back disability. 2. Entitlement to service connection for chronic skin rashes, to include as due to in-service exposure to chemical herbicides. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. His service records reflect that he served in the Republic of Vietnam in the United States Army and that his military decorations include the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for chronic skin rashes (to include as due to in-service exposure to chemical herbicides) and a chronic low back disability. In early March 2012, the Board remanded the above-mentioned issues to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development, including providing the Veteran with a VA medical examination in order to obtain a nexus opinion. The examination ordered on remand was conducted later that same month. Thereafter, the denial of service connection for chronic skin rashes (to include as due to in-service exposure to chemical herbicides) and a chronic low back disability was confirmed in an October 2012 rating decision/supplemental statement of the case. The case was returned to the Board in November 2012, and the Veteran now continues his appeal. For the reasons that will be discussed in the REMAND portion of this decision, the issue of entitlement to service connection for chronic skin rashes (to include as due to in-service exposure to chemical herbicides) is REMANDED once more to the RO via the AMC for further evidentiary development. The Veteran and his representative will be notified by VA if any further action is required on their part. FINDING OF FACT A chronic low back disability was not documented in service, degenerative joint disease of the lumbosacral spine was not diagnosed within one year of service discharge (or, indeed, until many years thereafter), and the competent and credible evidence fails to establish an etiological relationship between the Veteran's current low back disability and his active service. CONCLUSION OF LAW A chronic low back disability was not incurred, nor is one presumed to have been incurred in active duty. 38 U.S.C.A. § §1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties To Notify And To Assist With respect only to the claim of entitlement to service connection for a chronic low back disability decided herein, the Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The claim for service connection for a low back disability was filed in June 2007. A VCAA notice letter was dispatched to the Veteran in July 2007, prior to the February 2008 rating decision now on appeal. The letter addresses the low back disability claim on appeal and satisfies the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). There is no timing of notice error as fully compliant notice preceded the initial adjudication of the Veteran's claim. VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the claimant of its duty to assist in obtaining records and supportive evidence. The Board observes that the claimant's service treatment records and relevant private and VA medical records for the period from 1999 to 2012 have been obtained and associated with the claims file. VA has also provided the Veteran with a VA examination in March 2012, from which a diagnostic nexus opinion addressing the low back disability claim at issue was obtained. The physician who conducted the examination had the opportunity to review the Veteran's claims file and his nexus opinion addressing the relationship between the Veteran's military service and the claimed disability at issue is supported by an objective rationale based on the physician's review of the Veteran's pertinent clinical history. Furthermore, absent a challenge to the expertise of an examiner, which the appellant has not presented, the Board may assume the competence of VA examiners. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding that where a veteran does not challenge a VA medical expert's competence or qualifications, VA need not affirmatively establish that expert's competency). Thus, the Board finds no defect in the aforementioned examination of record and the nexus opinion obtained therefrom and it is deemed to be adequate for purposes of adjudicating the VA compensation claim decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, in view of the adequacy of this examination and the evidentiary development undertaken, the Board concludes (only with respect to the claim for VA compensation for a low back disability) that the RO/AMC has substantially complied with its March 2012 remand instructions and that an additional remand for corrective action is unnecessary. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his low back disability claim decided herein, and thus no additional assistance or notification is required. The claimant has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any documentation of treatment for complaints of back pain during active duty will permit service connection for a chronic low back disability, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases, such as arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a) (2012). Service connection for arthritis may be established based on a legal "presumption" by showing that either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). As relevant, the Veteran's service treatment records show that his spine and musculoskeletal system were clinically normal on pre-enlistment examination in March 1965. The Veteran entered active duty in July 1965. His medical records do not indicate treatment for any complaints relating to his back. On separation examination in July 1967, his spine and musculoskeletal system were clinically normal, and he expressly denied having any history of recurrent back pain on the medical history questionnaire accompanying this examination. Available post-service medical records from VA and private sources for the period from 1999 to 2012 show that the Veteran was treated for complaints of recurrent low back pain, which were attributed to diagnoses of degenerative joint disease (DJD), osteoarthritis, and degenerative disc disease (DDD) with bulging discs at the L5-S1 vertebral region. Medical imaging tests conducted in 1999, using MRI and X-ray, confirmed the aforementioned diagnoses. A March 2002 VA treatment note reflects that the Veteran reported having a 5-year history of low back pain from lifting heavy objects. In an August 2007 statement, the Veteran reported, in pertinent part, that he had a history of medical treatment for recurrent low back pain beginning in 1980. However, in written statements in support of his claim, he related a history of having to lift crates of heavy ammunition and ordnance during his combat service in Vietnam, which reportedly precipitated his current low back disability. (The Board has factually conceded the Veteran's account of having to regularly handle heavy loads of ammunition and ordnance as true, based on such activity being consistent with the hardships of combat service under 38 C.F.R. § 3.304(d) (2012).) The Veteran reports, in essence, that he experienced onset of low back pain in service with continuity of symptomatology thereafter to the present time. He also stated that due to the pressing need for combat troops in the field, his attempts to receive medical treatment for his back complaints in service were either actively discouraged or he was provided with only cursory medical attention that was not recorded in his service treatment reports. The Veteran's spouse is reportedly a licensed practical nurse and his primary caregiver (see VA psychiatric examination report of September 2011, noting incidentally her stated qualifications), although the claims file does not contain any documentation that substantiates these nursing credentials. She states in correspondence dated August 2007 that the Veteran has been bedridden several times due to back pain. No actual nexus opinion per se, addressing the Veteran's low back disability, was presented by the spouse in any of her written statements of record. The report of a March 2012 VA medical examination addressing the Veteran's back disability shows that he was diagnosed with DDD and osteoarthritis of his lumbosacral spine. After reviewing the Veteran's pertinent clinical history, including an acknowledgment of his reported history of unloading heavy ammunition crates from helicopters in Vietnam, with onset of low back pain in service and continuity of symptomatology ever since, but of not seeking medical treatment for low back pain until over six years after separating from service, the examining VA physician presented the following opinion: The [Veteran's chronic lumbosacral diagnoses were] less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Rationale: [The] Veteran's service record is void of medical treatment for low back pain. [The] Veteran's discharge exam [of] July 1967 is negative for back findings on exam or history of back injury. [The] Veteran by admission to me did not seek medical care for his back for 6+ years post service. Xrays reveal no evidence of old fracture and [also reveal] some degenerative disc disease [that is] consistent with age. The Board has considered the totality of the evidence and finds that the weight of the objective clinical evidence is against the Veteran's claim for service connection for a chronic low back disability. His service medical records show no treatment for any back complaints and a normal spine on examination during separation in July 1967. Significantly, the Veteran had expressly reported on his medical history on separation that he did not have recurrent back pain. The Board finds that this statement is highly credible and probative for indicating how the Veteran perceived the actual condition of his back at the time of his discharge from active duty, being that it was chronologically proximate in time to his period of military service and was not made in the context of, nor was it motivated by a claim for VA compensation. The Veteran himself does not indicate receiving treatment for low back pain earlier than six years following his discharge from military service. The Board has considered the Veteran's written testimony regarding onset of low back pain in service from the exertions associated with handling heavy ammunition, with continuity of low back symptoms thereafter. In the absence of medical records establishing continuity of symptomatology, a lay statement attesting to such may be sufficient in itself to establish a nexus with service if the statement is both credible and within the competence of the person presenting the statement to make. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certainly, the Veteran is competent to describe his own subjectively perceived symptoms, such as back pain, and their time of onset. However, his statements that he experienced continuity of chronic low back pain since service are contradicted by his documented affirmation of having no medical history of recurrent back pain on separation examination in July 1967. As previously discussed, the Board finds the Veteran's relevant medical history, as reported during the time of his discharge from active duty, is highly credible and probative evidence indicating that he did not have back pain or back problems during service. As such, his account of onset of low back pain in service and continuity of such symptoms since service is deemed to be non-credible for purposes of establishing a nexus between his current chronic low back disability and his period of active duty. Having determined that the Veteran's alleged clinical history regarding onset and continuity of low back pain since service is not credible, to the extent that he asserts on his own authority, based on his own personal knowledge of the particulars of his individual case, that his chronic low back disability is related to service, because the record does not show that he is a trained and accredited medical professional, he therefore lacks the competence to make diagnoses or present commentary and opinion on matters pertaining to medical causation or etiology. He is thus not competent to state that his perceived back pain during service and afterwards are manifestations of, or are otherwise associated with his current lumbosacral diagnoses. His statements in this regard are thus entitled to no probative weight. See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). While the Veteran's spouse is competent to state that she could observe the Veteran complaining of back pain, to the extent that she reports that she was aware of the Veteran's complaints of back pain in the years following his discharge from service, these observations are not tantamount to an actual clinical diagnosis of a chronic low back disorder. Even assuming for the sake of discussion that her credentials as a medical professional are true, the Board has carefully reviewed the record but finds no statement from the Veteran's spouse that presents a clinical diagnosis of a chronic back disorder or expresses the opinion, in her capacity as a licensed practical nurse, that the Veteran's current low back disability is related to his period of military service. The Board has reviewed the objective medical evidence and finds that it does not establish a link between the Veteran's chronic low back disability and his period of military service. The March 2012 VA medical examination presents a nexus opinion predicated on the examining physician's review of the Veteran's clinical history, which confers great probative weight upon his medical determinations. His opinion states, in essence, that notwithstanding his reported history of back pain from having to handle heavy ammunition crates in service, it is less likely than not that the Veteran's low back disability, currently diagnosed as DJD, DDD and osteoarthritis of the lumbosacral spine, was incurred in service, given that his spine was examined and found normal during entrance and separation from active duty, the absence of documented treatment for back complaints in service, and current medical imaging that does not reveal the presence of any old musculoskeletal injury or residuals thereof at the site of his lumbosacral spine, but instead reveals the presence of degenerative vertebral changes entirely consistent with the aging process. In view of the foregoing discussion, the Board concludes that an award of VA compensation is not warranted for the Veteran's chronic low back disability, to include degenerative disc and joint disease of the lumbosacral spine. The clinical evidence establishes that this orthopedic disability did not originate in service or have its onset to a compensable degree within one year after service, and is not otherwise related to service. His claim of entitlement to service connection for a chronic low back disability must therefore be denied. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a chronic low back disability is denied. REMAND With regard to the claim of entitlement to service connection for chronic skin rashes, to include as due to in-service exposure to chemical herbicides, the Board has reviewed the nexus opinion obtained on examination in March 2012, pursuant to its March 2012 remand, addressing this issue. Although the Board has already conceded the Veteran's in-service exposure to chemical herbicides, based on his military records that clearly establish that he served on land within the territorial confines of the Republic of Vietnam during the Vietnam War Era (see 38 C.F.R. § 3.307(a)(6)(iii) (2012); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008)), and requested that the VA examiner present a nexus opinion addressing the likelihood that the Veteran's diagnosed skin disorder was due to such exposure, the March 2012 opinion has failed to comply with this request. The March 2012 VA nexus opinion presents a diagnosis of a chronic tinea infection affecting the Veteran's groin and has presented a nexus opinion addressing the likelihood of a relationship with his period of military service on a general and direct basis. However, the opining clinician appears to have avoided addressing the question of whether the tinea could be related to his presumed chemical herbicide exposure in service. Notwithstanding that a chronic tinea infection is not one of the diseases presumed by 38 C.F.R. § 3.309(e) to be due to Vietnam War Era chemical herbicide exposure, the Veteran may still be awarded VA compensation if there is objective medical evidence nevertheless establishing a link between the chronic tinea infection and such exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).) As such, the Board finds the current opinion to be inadequate for VA adjudication purposes for failing to discuss the likelihood that the Veteran's chronic tinea infection is related to his in-service exposure to chemical herbicides. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). To this extent, it is in substantial noncompliance with the Board's March 2012 remand instructions. A remand for a corrective action to obtain an addendum to the March 2012 opinion rectifying the aforementioned deficit is thusly warranted. (See Stegall v. West, 11 Vet. App. 268 (1998): A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order.) Accordingly, the claim of entitlement to service connection for chronic skin rashes (to include as due to in-service exposure to chemical herbicides) is REMANDED to the RO/AMC for the following action: 1. An addendum to the March 2012 VA examination of the Veteran's skin should be obtained. To the extent possible, the addendum should be provided by the same clinician who conducted the March 2012 examination; otherwise, the addendum should be obtained from an appropriate clinician. The claims folder should be made available to and reviewed by the examiner providing the addendum. The addendum should state that the claims folder has been reviewed. The addendum should provide an opinion, based on the clinician's review of the record, as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the diagnosed skin disorder is related to the Veteran's conceded exposure to chemical herbicides during military service. A complete rationale should be given for the addendum opinion(s) expressed. If the examiner feels that the requested opinion(s) cannot be rendered without resorting to speculation, he/she should 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). 2. After a copy of the addendum requested above has been obtained and associated with the record, and after ensuring that there has been full compliance with the instructions of this remand, the RO should readjudicate the issue of entitlement to service connection for skin rashes, to include as a result of in-service exposure to herbicides. If the maximum benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs