Citation Nr: 1311085 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 08-12 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include asthma, to include as secondary to service-connected coronary artery disease (CAD) and/or due to Agent Orange exposure. 2. Entitlement to service connection for arthritis, to include arthritis of the spine. 3. Entitlement to service connection for a skin disorder, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active military service from December 1948 until retiring in December 1968. His DD 214 show that his military decorations include the Vietnam Service Medal and that his military occupational specialty was maintenance supervisor. This appeal to the Board of Veterans' Appeals (Board) is from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. In the April 2008 Substantive Appeal (VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge (VLJ) of the Board but he did not report for the hearing subsequently scheduled in June 2009, and has not explained his absence or requested to reschedule the hearing. Thus, the Board considers his hearing request withdrawn. See 38 C.F.R. § 20.704(d) (2012). In July 2009 the Board remanded the issues remaining on appeal for evidentiary development. At that time the issues included service connection for bilateral hearing loss and tinnitus. An August 2010 rating decision granted service connection for those disorders but the Veteran did not appeal either the effective dates assigned for service connection or the initial noncompensable and 10 percent disability ratings respectively assigned. So, those matters are not before the Board. A March 2011 rating decision granted service connection for CAD with postoperative residuals of bypass graft (CABG), and associated atrial fibrillation, which was assigned an initial 60 percent rating; and service connection was granted for residual postoperative CABG and pacemaker implantation scars, which were assigned an initial noncompensable rating. The Board again remanded the case for additional evidentiary development in August 2011. Thereafter, the Board in November 2012 noted that the issue of entitlement to service connection for a throat disorder only includes residuals of the laryngeal surgery. The November 2012 Board decision, inter alia, denied service connection for a throat disorder, to include as due to Agent Orange exposure. The issues now before the Board were again remanded. The case has now been returned to the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides therein. 2. Chronic residuals of inservice acute upper respiratory infections, to include asthma and chronic obstructive pulmonary disease (COPD), were not incurred during active service and current COPD is not related to any incident of military service, including inservice herbicide exposure, and is not caused or aggravated by service-connected CAD with CABG. 3. Neither generalized arthritis nor arthritis of the spine or chronic residuals of inservice back injuries, were shown during service or within the first post-service year, and the competent and probative evidence of record establishes that the Veteran's current arthritis and degenerative disc disease (DDD) of the lumbar spine are less likely than not related to any disease, injury or other incident of service, including back injuries. 4. A chronic skin disorder, including actinic keratoses and basal cell carcinomas, is not shown during service or within the first post-service year, and the competent and probative evidence of record establishes that the Veteran's current actinic keratoses and basal cell carcinomas are not related to any incident of military service, including inservice herbicide or sun exposure, and are more likely than not caused by childhood sun exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder, to include asthma, to include as secondary to service-connected CAD with CABG and/or due to Agent Orange exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e), 3.310 (2012). 2. The criteria for service connection for arthritis, to include arthritis of the spine, are not met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.309(a) and (e), 3.310 (2012). 3. The criteria for service connection for a skin disorder, to include as due to Agent Orange exposure, are not met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.309(a) and (e), 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, et seq (effective November 9, 2000) (Veteran Claims Assistance Act of 2000 (VCAA)); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159. By letter dated in April 2006, prior to the initial adjudication of the service connection claims, the RO advised the Veteran of the evidence needed for claim substantiation and explained what evidence VA would obtain or assist in obtaining and what information or evidence the claimant was responsible for providing. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was also apprised of the downstream disability rating and effective date elements for claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thus, there has been full compliance with the duties to provide notice of what was need for claim substantiation. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Duty to Assist And as for the duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, and VA treatment records. He declined the opportunity to testify in support of his claims. In compliance with the 2009 Board remand, by letter in September 2009 the Veteran was requested to provide information as to when and how he was exposed to herbicides in performance of his military duties. He responded in October 2009 reporting that he had been in Vietnam from June to November 1961 and from May 1962 to June 1963. He had been a chief maintenance "NCO" on a caribou aircraft to keep troops and supplies moving and to relocate Vietnamese families. In 1961, equipment for spraying herbicides was loaded onto the aircraft and within two days of spraying along the delta river region all vegetation was dead. Because the Board concedes that the Veteran was in Vietnam no further action, such as suggested in the 2009 remand, was required to verify such inservice exposure. In September 2009 the Veteran was contacted and requested to complete and return release forms for each health care provider. However, in his October 2009 response, while listing postservice healthcare providers, he did not state the inclusive dates of treatment and did not execute and return the necessary release forms. He was contacted again, in November 2009 and requested to provide this information and executed the needed release forms. In response, the Veteran forwarded private clinical records to VA. Subsequently the Veteran executed and returned the requested releases and those records have been obtained from those private clinical sources that responded and had still retained their records. By letter in March 2010 the Veteran was informed of the multiple unsuccessful attempts to obtain private clinical records from Dr. J. P. and he was requested to submit any copies of such records or any new address for that physician. Thereafter, the Veteran wrote Dr. J. P. requesting that he submit record to VA at the Veteran's expense. This letter was sent to the same address previously used by VA in correspondence to Dr. J. P. There is no indication that there was any response by Dr. J. P. On file is a June 2, 2010, Memorandum relative to verification of the Veteran's inservice herbicide exposure. It was noted that his personnel file revealed that he was stationed in Thailand and the Republic of Vietnam from June 6, 1962, to May 1963. Because he was stationed in Vietnam during the "presumptive-exposure period" (from January 9, 1962, to May 7, 1975) the Veteran was established as having been exposed to Agent Orange. Subsequently, an August 2010 deferred rating action indicated that this memorandum should be revised because information indicated that portions of the Veteran's unit first arrived in Vietnam in July (not June) 1962, and the remainder arrived in December 1962. Thus, the Memorandum was revised in September 2010 to reflect this. The Veteran was provided notice in September 2011 compliance with the August 2011 Board remand as to needed information concerning his sun exposure and postservice treatment and employment; as well as private records of treatment for asthma and his cardiac bypass surgery as well as postoperative follow-up. Also, later in 2011, VA medical opinions were obtained in compliance with the August 2011 Board remand. Pursuant to the 2012 Board remand, by letter in November 2012 the Veteran was requested to submit or clarify any additional evidence supporting his claims, but he did not respond. Also, he was provided additional VA examinations in 2012, pursuant to the 2012 Board remand. The Board also observes that the Veteran never provided, as requested, a full and complete history of his preservice, inservice, and postservice sun exposure. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nevertheless, the requested detailed information as to his past sun exposure during and after service was elicited by the 2012 VA examiner, in compliance with the 2012 Board remand, and the opinions requested in that remand were obtained. In this regard, even in light of the duty to independently consider issues suggested by the evidence of record, under Comer v. Peake, 552 F.3d 1362, 1368 (Fed.Cir. 2009), the Board is entitled to presume both the competence of a VA examiner and the adequacy of an examiner's opinion, unless challenged. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); and Hilkert v. West, 12 Vet. App. 145, 151 (1999). Neither are challenged in this case. In this regard, "[i]t is not required that a medical opinion regarding secondary service connection be stated in the precise terms found in [38 C.F.R.] § 3.310 to be considered adequate. To the contrary, this Court has emphasized that a physician's choice of language is not error where, as here, his opinion is unambiguous and sufficient to comply substantially with the purpose for which it was sought. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The physician's task is to opine as to medical causation; the Board is charged with finding facts and applying the requisite legal standards." Kittrell v. Shinseki, No. 08-3001, slip op. at 2 (U.S. Vet. App. Nov. 10, 2010); 2010 WL 4671873 (Vet.App.) (unpublished nonprecedential memorandum decision); aff'd Kittrell v. Shinseki, No. 2011-7102 ((Fed.Cir. Feb. 17, 2012); 2012 WL 884871 (C.A.Fed.). Here, in light of the questions posited to the examiners, their review of the claims files, the clinical histories they recorded, and physical examination of the Veteran, the Board finds that the opinions obtained are adequate to adjudicate the claims. While the case had been remanded for specific opinions as to whether some of the claimed disabilities were caused or aggravated by the service-connected CAD with CABG, the opinions when taken in context sufficiently and clearly addressed those matters. And all this was in substantial compliance with the Board remands in 2009, 2011, and 2012. Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998). Therefore, as there is no indication or allegation that other relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board has thoroughly reviewed all the evidence of record. Although the Board has an obligation to provide reasons and bases supporting any decision, there is no requirement to discuss, in detail, all pieces of evidence on file, or submitted by the Veteran 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. The Veteran must not assume that the Board has overlooked pieces of evidence which 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 a veteran). Background The Veteran's service personnel records show that he served in "USARPAC-Thailand/Vietnam" from June 6, 1962, to May 29, 1963. They also show that his main civilian occupation had been a carpenter performing general carpentry work in connection with the construction of wooden frame houses. In February 1950 the Veteran had pain in the lower chest when breathing deeply, and a slight cough. On examination his lungs were clear to percussion and auscultation. In June 1950 the Veteran had a stain of the sacroiliac which was incurred while lifting heavy timber. Two days later, his condition had improved to some extent. STRs show that the Veteran was hospitalized in August and September 1957 for fractures of the right and left mandibles. During that hospitalization he had a urticarial reaction to penicillin consisting of a rash on his right arm, which resolved. In December 1958 the Veteran had all the signs and symptoms of a possible muscle strain (but the location of the muscle was not reported). In February 1960 he had acute pharyngitis. The next day the diagnosis was an upper respiratory infection (URI) of undetermined type, cause, and location. In July 1961 (prior to any service in Vietnam) he had a cystectomy of a cyst of undetermined type of the anterior aspect of the left side of his neck. STRs show he was seen at the American Dispensary in Saigon, Vietnam, from August to October 1961. In September 1961 he injured his back while working with electrical equipment, sustaining an electrical shock which threw him backwards. Since then he had noticed pain in the right upper back at about T12. He was now bent over and could not straighten up. The impression was a back strain. He was hospitalized in September 1961 for a paravertebral muscle strain. Lumbosacral X-rays were negative. STRs show the Veteran was seen at a field hospital in June 1962 and again in May 1963, for undisclosed purposes. In June 1964 the Veteran had had tenderness of both knees, posteriorly, for about 10 days with some sensation radiating into the gastrocnemius, greater in the right leg than the left. He had no loss of motor function or sensory loss. He denied any recent back injury, although he had been hospitalized in 1961. An examination was negative except for some questionable tenderness over the right iliosacral area. A week later he was almost asymptomatic except in a small area of the lateral aspect of the left knee. In January 1966 the Veteran had hoarseness and a sore throat. On examination his pharynx was inflamed. In May 1966 it was reported that the Veteran had had a cyst removed from the left side of his neck in 1961 and it had now returned. On general examination for flying status in December 1966 he had no history of asthma, hay fever or sinusitis. On examination for service retirement in September 1968 no pertinent abnormality was found. In an adjunct medical history questionnaire he reported having or having had a history of a fractured jaw bone and a cyst, tumor, cancer or growth on his neck. It was reported that a tumor had been removed from the left side of his neck in 1963. A chest X-ray revealed no significant pulmonary or cardiovascular abnormality but there was slight scoliosis involving the upper elements of the dorsal spine with convexity directed to the left; but, the conclusion was that no significant abnormalities were demonstrated. Repeated chest X-rays during service revealed no active pulmonary disease. In the Veteran's February 2006 claim for service connection for skin cancers, arthritis, asthma and lung problems he reported that he had not been exposed to asbestos. Private clinical records indicate that the Veteran had pneumonia in 2001 and 2002. Private clinical records show that the Veteran was treated actinic keratoses from 1994 through at least 2002 and for basal cell carcinoma in 2002. A private chest X-ray in February 2004 revealed stable COPD and post CABG changes. Private clinical records show that the Veteran had elbow bursitis in 2004 and 2005. In February 2005 he underwent excision of the olecranon bursa of the left elbow because of chronic bursitis. Records of a private dermatologist show that the Veteran was seen in 2007 for actinic keratoses and sebaceus adenoma. He was treated for basal cell carcinoma in 2009. An August 2007 letter by Dr. J. R. K. noted the Veteran had a history of arthritis of his knuckles and hands. Private clinical records also show that in December 2007 it was noted that the Veteran had had recurrent pneumonia about 5 times in the last year or so with some hospitalizations for serious pneumonia. A July 2008 private clinical report of an office visit noted that the Veteran had recently been evaluated by a cardiologist who had felt that there was no cardiac component to the Veteran's COPD. A record of admission in February 2009 to the Wedowee Hospital reflects that the Veteran's COPD was felt to be due to long term exposure to Agent Orange because he had never smoked. Private clinical records also show that the Veteran was treated for COPD in 2009 and that it was noted he had had a CABG in 2000 and a pacemaker implanted in 2003. In 2009 it was noted that he had had mild COPD for 5 years. A discharge summary of hospitalization in October 2009 at the Shelby Baptist Medical Center noted that the Veteran had had spontaneous pneumothorax in 2004. A December 2007 discharge summary from that facility noted he had a history of a knee arthroscopy (although the date was not specified), significant arthritis, hyperthyroidism, COPD, and acute spontaneous pneumothorax. On VA respiratory examination in June 2010 the Veteran's claim file and medical records were reviewed. The Veteran reported that he had had left pneumothorax in 2000 during treatment for pneumonia. He was told he had COPD around 2002 by his pulmonologist. There were no records indicating he had asthma. He reported that he had never smoked. He now used home oxygen and an albuterol nebulizer. He had no history of non-anginal chest pain. On physical examination there were no significant cardiac findings. The Veteran did not attend an appointment for pulmonary function testing but a chest X-ray revealed mild emphysematous changes, and minimal scarring and atelectasis of the right lung base; as well as scoliosis of the thoracic spine with minimal degenerative changes. The diagnosis was COPD. It was opined that COPD was not caused by or a result of active duty because there was no documentation of a lung condition during active duty and COPD was not diagnosed until the Veteran was age 70. Thus, there was no indication of a chronic respiratory condition with onset during service. On VA dermatology examination in June 2010 the Veteran's claim file was reviewed. It was noted that the Veteran had had basal cell carcinoma excised from the right ear; and also had excision of basosquamous cell carcinoma from the right side of his back in 2009. He continued to have actinic and senile keratoses, being either frozen or excised from facial areas. After a physical examination the diagnoses were excision of basal cell carcinoma from the right auricle, and basosquamous cell carcinoma of the right side of the neck, resolved without residuals. It was opined that these were not caused by or a result of active duty because there was no indication of these skin conditions during active duty. The Veteran was fair skinned and was raised on a farm in the South, and he also had other risk factors. There was no documentation to support his claim of a chronic skin condition which had its onset during active duty. On VA orthopedic examination in June 2010 the Veteran's claim file was reviewed. He reported having injured his spine during service but (reportedly) there was no documentation of this. He had worked on a rock crusher in the Aleutian Islands during service and, after the injury, had been on bedrest for 4 to 5 days. He reported that for many years thereafter he had intermittent flare-ups of spinal pain that required rest and Darvon. He had had a transurethral resection of the prostate (TURP) in the 1980s and since then he had not had routine back pain. However, he had had a recent exacerbation about 10 years ago. On physical examination it was noted that he had scoliosis but no other abnormality spinal curvature. Lumbosacral X-rays revealed scoliosis of the lumbar spine with convexity to the right and mild, right sided, lateral subluxation of L3 on L4, as well as discogenic degenerative changes throughout the lumbar spin, worse and severe at L2-3 and L3-4 with prominent enthesophytes at L2-3. Also, moderate degenerative changes were present at L4-5 with osteophytes, vacuum disc phenomenon, and narrowing. The diagnosis was degenerative joint disease (DJD), scoliosis, and kyphosis of the thoracolumbar spine with DDD, as well as arthritis. It was opined that these were not caused by or a result of active duty because there was no documentation of treatment for a spinal condition during service. In a September 2010 addendum it was opined that COPD, asthma, basal cell carcinoma, joint disease of the thoracolumbar spine were not caused by or a result of exposure to Agent Orange herbicide because these conditions were not known to have a positive association with exposure to Agent Orange. An additional addendum in November 2010 addressing the possibility of a connection between the current conditions and symptoms during service, attention was drawn to the original opinions expressed in June 2010 and it was noted that none of the current conditions were present in any form during active duty. Attention was drawn to and it was noted that the onset in the problem summaries (in the reports of the June 2010 examinations) and the lack of medical documentation in the STRS. On VA examination in 2011 as to the claim for service connection for a respiratory disorder the Veteran's claim file was reviewed and it was noted that the Veteran had had the gradual onset of dyspnea on exertion in the late 1990s. He had been found to have COPD based on imaging and pulmonary function tests (PFTs). He had had pneumothorax which was treated with a thoracentesis. He believed that his COPD was due to Agent Orange or his service-connected heart disease. However, he had no history of asthmatic attacks. He did not have any scars, surgical or otherwise, which were related to a respiratory condition. Chest X-rays in 2010 revealed stable diffuse emphysematous changes, and generalized osteopenia. He did not have multiple respiratory conditions. On VA examination in 2011 as to the claim for service connection for arthritis, including arthritis of the spine the Veteran's claim file was reviewed and it was noted that he had lumbar DDD. The Veteran reported that during service, after working with a rock crusher, he was hospitalized and treated for a back strain in the 1960s. He went back to full duty without residuals. It was not until decades later, after service, that he was found to have lumbar DDD, based on imagining n the 1990s. He now had daily low back pain. Range of motion testing was conducted. Straight leg raising was negative, bilaterally, and he had no radicular pain or other symptoms of radiculopathy, including no bowel or bladder problems or pathologic reflexes. It was reported that he did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. He did have thoracolumbar arthritis according to imaging studies. A lumbar X-ray had found scoliosis with convexity to the right and mild right lateral subluxation of L3 on L4, with discogenic degenerative changes at L2-3 and L3-4, with prominent enthesophytes at L2-3, vacuum disc phenomenon, and narrowing. On VA examination in 2011 as to the claim for service connection for a skin disorder the Veteran's claim file was reviewed and it was reported that he had had basal cell carcinoma and actinic keratosis. It was noted that he had a fair complexion and had worked on a farm as a child and he would get sunburns and would work without a shirt most of the time. During service he was not treated for any skin cancer or for sun damage. It was not until military service that he started to have issues with sun damage and lesions. He had been assessed by a dermatologist and was treated with liquid nitrogen. He had had basal cell cancers on two occasions, on the right ear in 2002, and also in 2009, and both had been excised. He continued to have actinic keratoses which were treated with liquid nitrogen, the last time being 3 months ago. On examination he had dried, scaling, hyperpigmented macules and papules on the hand, forearms, and face. He had residual scarring from excisions of basal cell cancers. The medical opinion after these examinations was that the disorders found on the examinations were less likely at not caused by or the result of miliary service, including exposure to herbicides and to the sun. The rationale was that none of these conditions were documented in the STRs, including sick calls and the separation examination. During service he had a couple of sick calls for URIs and pharyngitis but there was no evidence of any residuals from these in the claim files. There was no evidence of COPD during service and it was not until within the past 15 years that COPD had been diagnosed. COPD was not a condition related to herbicide exposure. Also, he had one episode of a back strain during service, but based on the evidence there were no residuals from this (single) episode. A muscle strain was not the same as DDD. It was not until decades later that the DDD was diagnosed. This DDD was most likely due to his age and it was not related to herbicide exposure. His skin cancers were due to his overall sun exposure with the vast majority being during childhood and teen years. There was no evidence in the STRs of any significant skin damage or sunburn during service. Studies had shown that the main risk of this type of skin condition was sun exposure as a child. He also had a fair complexion and grew up on a farm in the South. These skin conditions were not presumptive herbicide conditions. Further, there was no evidence that these conditions had continued after service on a chronic basis because they had not started during service and they all began decades after service. Moreover, the COPD was not due to the service-connected CAD but was due to lung damage and not heart damage, which were distinct bodily systems which were separate in terms of etiology. The main etiology of COPD was tobacco use. The back condition was related to arthritis from aging and it was virtually impossible to not see lumbar spine DDD in a patient older than 50 years of age. The skin conditions were due to sun exposure as a child and there was no commonly accepted link between CAD and skin cancers. As to the claim for arthritis, on VA examination in December 2012 the Veteran's claim files were reviewed and he reported having injured his back in the Aleutian Islands and was treated with bedrest for a back sprain for 4 to 5 days, after which he was returned to full duty. He also had another back strain which but could not recall details. He clearly stated that on each such occasion he recovered without residuals and had returned to full duty. After service he had intermittent back issues after various lifting injuries, and this would happen about once a year. It was not until he was in his 60s that he was found to have arthritis and DDD of the lumbar spine. He now had daily back pain. A physical examination, including range of motion testing, was conducted. He had an abnormal spinal contour but no muscle atrophy. Straight leg raising was negative, bilaterally, and he had no other symptoms of radiculopathy. It was opined that the back condition was less likely as not related to, caused by or aggravated by military service. The rationale was that the STRs revealed episodes of back strains without residuals. This was not the same as DDD. It was not until decades later that the DDD was diagnosed. DDD was most likely due to the Veteran's aging. The medical documentation was more objective and contradicted the assertion that the sprains, and chronic residuals thereof, led to DDD. Also, DDD was not related to herbicide exposure. Rather, this type of DDD was related to the degeneration of aging. It was virtually impossible not to see lumbar DDD in a patient older than 80 years of age. As to the claim for a respiratory disorder, on VA examination in December 2012 the Veteran's claim files were reviewed and he reported that he started to have issues with dyspnea on exertion in the late 1990s. This was overlapping with his heart disease. He had a tobacco use history. He had had a work-up by a pulmonary specialist and found to have COPD, and he continued to have progressive symptoms. He had been treated within the past few years for pneumonia but had recovered. The last episode was in the early 2000s. It was opined that the COPD was less likely as not related to, caused by or aggravated by military service or by his service-connected heart condition. The rationale was that the main and number one risk factor for COPD was tobacco abuse, which he had. There was no medical evidence for COPD onset in service based on the STRs, the claim files, or the Veteran's statements. COPD was not related to herbicide exposure but was a respiratory condition due to lung damage and not heart damage, these being two distinct and separate bodily systems and separate in terms of etiology. As to the claim for a skin disorder, on VA examination in December 2012 the Veteran's claim files were reviewed and he reported as a child he had worked on a farm from the age of 6 to 21 years of age. During service, he was at Ft. Bragg for 3 years, at Ft. Benning, Georgia, for 2 years, and was in Southeast Asia for 2 years. He was also in Arizona on a flight line from 1963 to 1969. After service, he had spent the rest of his life in Alabama. He was not treated for a skin condition during service. He had a very fair complexion and he recalled having had sunburns when he was younger, not having worn a shirt when he was a child. During service he had to wear a shirt, as well as a hat or helmet. It was not until the 1990s that he started seeing dermatologists and was treated for actinic keratoses with liquid nitrogen and twice had had excisions of basal cell cancers. It was opined that the skin conditions were less likely as not related to, caused by or aggravated by military service. The rationale was that the key was the timing of the sun exposure. Specifically, studies had shown that it was the sun exposure as a child that was the main risk factor for these skin conditions. His duration and the type of exposure were also confirmed by his statements, and as a child he had very high risk exposures. There was no medical evidence in the STRs of any significant skin damage which could be "attributed in terms of an aggravation for these conditions." Also, these conditions were not presumptively related to herbicide exposure. Citation was made to medical authorities. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, not every manifestation of abnormality of joint pain inservice will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Service connection for a disability requires (1) the existence of a present disability: (2) inservice 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 nexus requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed.Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Certain conditions, arthritis and cancer, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Previously, caselaw allowed for continuity of symptomatology to be used beyond the list of chronic diseases in 38 C.F.R. § 3.309(a). See Savage v. Gober, 10 Vet. App. 448, 495-96(1997), Kent v. Nicholson, 20 Vet. App. 1 (2006) and Barr v. Nicholson, 21 Vet. App. 303 (2007); see also dictum in Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed.Cir. 2008). However, recently in Walker v. Shinseki, No. 2011-7184, slip op. at 14 (Fed.Cir. Feb. 21, 2013); 2013 WL 628429 (C.A.Fed.) these cases were explicitly overruled by the United States Court of Appeals for the Federal Circuit. In sum, in Walker, No. 2011-7184, slip op. (Fed.Cir. Feb. 21, 2013) it was held that continuity of symptomatology could be used to establish service connection only for the disorders specifically listed at 38 C.F.R. § 3.309(a) as being "chronic" diseases and not for other disorders which might be chronic in a medical senses much less for non-chronic disorders. In Walker v. Shinseki, No. 2011-7184, slip op. (Fed.Cir. Feb. 21, 2013); 2013 WL 628429 (C.A.Fed.) the Court interpreted the interplay between 38 C.F.R. §§ 3.303(b), 3.307(a), and 3.309(a) as permitting service connection for chronic diseases listed at 38 C.F.R. § 3.309(a) in two circumstances. First, when a listed chronic disease is shown inservice or within a presumptive period under 38 C.F.R. § 3.307 which requires that it be "well diagnosed beyond question" or "beyond legitimate question." Walker, slip op. at 11 and 12. The second circumstance is when a condition is noted during service or a presumptive period but is not shown to be chronic or when a diagnosis of chronicity may be legitimately questioned such that a chronic disease is not shown and, here, proven continuity of symptomatology then establishes the nexus with the current disease and also confirms the existence of chronic disease during service. In the case of a disease which is not a chronic disease under 38 C.F.R. § 3.309(a), service connection must be established under 38 C.F.R. § 3.303(a) (and not § 3.303(b)) which requires that the "nexus" requirement be satisfied (whereas, under § 3.303(b) provides for presumptive service connection or service connection by use of continuity of symptomatology. Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57,586-57,589 (1996); 72 Fed. Reg. 32,345-32,407 (2007). Notwithstanding the presumptive provisions, service connection for claimed residuals of exposure to herbicides also may be established by showing that a disorder resulting in disability is, in fact, causally linked to the exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir.), citing 38 U.S.C.A. §§ 1113 and 1116, and 38 C.F.R. § 3.303. Reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis 38 U.S.C.A. § 1154(a) requires consideration of all pertinent medical and lay evidence. "[T]here is no categorical requirement of 'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis'." Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (citing v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) quoting Jandreau , 492 F.3d at 1377 (2007)); see also 38 C.F.R. § 3.307(b) (a determinative factual basis can be shown by medical or competent lay evidence) and 38 C.F.R. § 3.159(a)(1) and(2) (defining competent medical and lay evidence) and 3.307(b) (as to chronicity and continuity of symptoms lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson, 581 F.3d 1313 (Fed.Cir. 2009) (overruling broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issue is either medical etiology or medical diagnosis); see also King v. Shinseki, 700 F.3d 1399 Fed.Cir. 2012); 2012 WL 6029502 (C.A.Fed.) (confirming that Davidson, Id., overruled the broad holdings in Buchanan, Id., and Jandreau, Id.). The credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, but it is a factor. Buchanan, 451 F.3d at 1336 (lay evidence concerning continuity of symptoms after service, if credible, may be competent, even without contemporaneous medical evidence). In other words, it may not be determined that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Davidson, 581 F.3d at 1316 (Fed.Cir. 2009) (citing Buchanan, Id.). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once lay evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Herbicide Exposure The Veteran's STRs show he was seen at the American Dispensary in Saigon, Vietnam, from August to October 1961; so the record establishes that he served in Vietnam during the Vietnam era. The Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a Veteran who served in the Republic of Vietnam during that period; and in all other cases the period beginning August 5, 1964, and ending May 7, 1975, inclusive. See 38 C.F.R. § 3.2(f). However, presumptive service connection based upon herbicide exposure is available only to Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and who have certain specifically defined disabilities. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Here, because the Veteran's DD 214 indicates that he served in Vietnam, he was awarded the Vietnam Service Medal, and his service personnel records show that he served in "USARPAC-Thailand/Vietnam" from June 1962 to May 1963, the Veteran's inservice exposure to herbicides is conceded. A Respiratory Disorder, To Include Asthma, To Include as Secondary to Service-Connected Coronary Artery Disease and/or Due to Agent Orange Exposure The Veteran had at least one URI during his active service. However, this was in 1960 prior to his service in Vietnam. The STRs are negative for the presence of a chronic respiratory disorder and the evidence now shows that he does not have asthma but, rather, has COPD. The actual presence of COPD is not shown to antedate a point in time decades after his retirement from military service and inservice exposure to herbicides. In support of the Veteran's claim is a single notation in 2009 in a private clinical record that it was felt that the Veteran's COPD was due to inservice herbicide exposure, in the absence of the Veteran's not having smoked. However, this opinion does not address the multiple episodes of pneumonia which the Veteran had prior to developing COPD, including at least one episode severe enough to cause pneumothorax which required thoracentesis. While this was also not addressed in the multiple VA medical opinions, each of the VA opinions obtained specifically found that COPD had its onset many years after military service and was not related to inservice herbicide exposure. Moreover, the 2012 VA medical opinions on file found that even considering the Veteran's statements, that CODP was not related to, caused by or aggravated by military service. All of the VA medical opinion are also to the effect that the COPD is not related to inservice herbicide exposure and the 2012 VA medical opinion further found that it was not only not caused by the service-connected CAD with CABG but the current COPD was not aggravated by the service-connected CAD with CABG. Again, while neither the private medical opinion nor the VA medical opinions addressed the impact of the Veteran's multiple postservice episodes of pneumonia, the VA opinions were obtained after a review of the claims files, interview of the Veteran for his clinical history, and a physical examination. Also, as noted, the 2012 VA medical opinion specifically took into account the Veteran's current statements of his clinical history. These were reasoned medical explanations for the opinions. For these reasons, the Board finds the multiple negative VA medical opinions on file to be more persuasive than either the Veteran's lay statements alone, the private medical opinion, or both together. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301, 304 (2008). Accordingly, service connection for a respiratory disorder, to include asthma and COPD, is not warranted. Arthritis, To Include Arthritis Of The Spine Although there clinical notations of inservice back injuries during service, the STRs fail to demonstrate the combination of manifestations sufficient to identify a chronic low back disability during active service. As noted by VA examiner, there were no further complaints or treatment for low back disability. Likewise, he was seen for other general musculoskeletal complaints but no X-rays during service revealed the presence of arthritis. The X-rays at service retirement revealed only slight scoliosis of the upper dorsal spine but the conclusion at that time was that there were no significant abnormalities. Also, at service separation there were no low back complaints or complaints indicative of arthritis in an adjunct medical history questionnaire. "[T]he more contemporaneous the evidence, the greater [the] probative value and credibility than can be attached to that evidence, especially when later-dated testimony [] and statements were generated for pecuniary purposes ... 'memory hinges on recency', earlier statements are generally more trustworthy than later ones." Curry v. Brown, 7 Vet. App. 59, 64 (1994). Thus, chronicity of low back disability inservice as well as generalized arthritis and arthritis of the spine is not adequately supported by the STRs and the evidence as a whole. Accordingly, as to arthritis, a showing of continuity of symptomatology after service or competent medical evidence of a nexus with service is required to support the claim when, as here, it is unquestioned that the Veteran now has chronic arthritis of the low back. As to continuity of symptoms, the Veteran has stated that he had symptomatology of his low back since his military service. However, a VA examinations in this case, it was noted that he had had multiple work-related back strains. Moreover, in this case, the history of continuous symptoms since service is contradicted by the service retirement examination which found no significant low back disability. Despite the current contention of continuous low back symptom, symptom continuity is also interrupted by the absence of corroborating clinical records until many years after the Veteran's military service, and after postservice work-related back strains. While posited as lay evidence, the Veteran's belief that the inservice injuries were a precursor or the cause of his current low back disorder is actually a medical opinion in the guise of lay evidence and, as such, is not competent. Moreover, the Veteran has repeatedly neglected the mention the severity of the multiple postservice work-related low back injuries. As to the implicit contention that if radiological studies had been done during service, arthritis or some pathology consistent with trauma would have been shown, the Board notes that the actual presence of arthritis can only be determined by radiological studies. The X-ray at service retirement disclosed no more than some dorsal scoliosis which, it was then concluded, was of no significance. No X-ray study of the Veteran's low back during military service (and there were no X-rays within one year after his military retirement) found arthritis. However, despite raising the specter of this possibility, X-rays after military service have not found evidence of changes due to past trauma. Thus, any implicit assertion as to what X-rays during service would have shown is no more than speculation and is contradicted by the X-rays at service retirement. Also, any assertion of continuity of arthritic symptomatology after service stands in stark contrast to the history he related at the 2011 and 2012 VA examinations when it was noted that he had recovered, without residuals, from his inservice back injuries. Also, the credibility of the Veteran's lay statements of continuous arthritic symptoms is substantially undermined by the fact that he did not seek treatment for a low back disorder until he sustained a series of postservice work-related low back injuries many years after service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Thus, the Board finds that the Veteran's statements continuous arthritic low back symptoms, e.g., pain since his inservice injuries, are not credible. Moreover, the Veteran has not reported having had a contemporaneous medical diagnosis, i.e., of DJD or DDD during service or of DJD within the first postservice year, and he has not described symptoms supported by a later diagnosis by a medical professional. Jandreau, Id. As to generalized arthritis, despite other musculoskeletal complaints during service, e.g., his knees, the evidence does not now show that he had arthritis of any part of his musculoskeletal system other than his spine. The single postservice private clinical notation of arthritis of his knuckles and hands is not corroborated by actual radiological evidence. Accordingly, the Board concludes that the lay evidence is not credible for the purpose of establishing continuity of symptomatology. At issue then, is whether the Veteran's current low back disability can be related to an acute injury inservice by competent medical evidence. However, there is no competent and persuasive opinion of record showing a relationship between the Veteran's currently diagnosed low back pathologies and any incident or event during service. As to medical evidence of a nexus between current low back disability and the acute inservice injuries, the recent VA medical opinions are to the effect that his arthritis and DDD are due to no more than the aging process. These opinions are consistent with the evidence that it is not until many years after retirement from his military service and after he had a series of postservice work-related injuries that radiological studies revealed pathology of the thoracolumbar spine, including DJD and DDD. In fact, the repeated VA examinations have shown that while he does have lumbar DDD, even now it is not of such severity that the VA examinations found clinical evidence of either sciatica or radiculopathy. The recent VA examiners opined that any current arthritis and DDD are unrelated to the Veteran's military service due to the absence of evidence of arthritis and DDD and, implicitly, the passage of time without corroborating evidence of pathology. As noted above, this is only one factor, and may not be the determinative factor, in assessing credibility. Other factors are, as noted, that the current low back arthritis and the DDD has been repeatedly noted to be degenerative in nature. Even if there were recent radiological evidence of arthritis or disc pathology of traumatic etiology (and there is none), this would be after the Veteran's multiple postservice work-related low back injuries. In fact, all of the spinal changes, i.e., arthritis and DDD, are first shown many years after his retirement from military service. The lapse of many years between the inservice low back injuries and the earliest contemporaneous radiological evidence after service of low back pathology, and again only after a series of postservice work-related low back injuries, is further evidence against there being a nexus between the inservice injury and current low back disability. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Based on a review of the record and the clinical findings from examination, the recent VA examiners opined that the Veteran's current low back disabilities, DJD and DDD, were not caused by or the result of the inservice injury. The VA examiner supported this conclusion with citation to relevant facts following a review of evidence. There is no persuasive contrary medical opinion of record. Posited against this is the Veteran's interpretation of the medical evidence which is not supported by the actual medical evidence on file. The Board is not required to accept the Veteran's lay interpretation of medical evidence because the Veteran lacks the education, experience, and training to make such interpretations. Jandreau, Id. While competent medical evidence is not always required in a claim for service connection, and competent lay evidence may suffice in appropriate circumstance, competent evidence of some kind, either medical or lay evidence, is required. Here, there is neither medical evidence nor lay evidence which is both competent and credible that establishes continuity of symptomatology or the required nexus between the inservice low back and the current pathologies of the low back. Thus, the Board finds that the opinions of the recent VA examiners outweighs, for the reasons explained, the credibility of the Veteran's statements of putative continuity of low back arthritic symptomatology. As to this, the Board must consider only independent medical evidence to support the findings rather than provide a medical judgment in the guise of a Board opinion. Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991). Here, there is no other persuasive medical opinion addressing the question of etiology of the Veteran's current DJD and DD of the low back. In sum, the Board does not question that the Veteran sustained some back injuries during service. He contends that his current low back disabilities are due to those injuries, as opposed to his multiple postservice work-related injuries following which both DJD and DDD are shown. However, for the reasons explained, there is no reasonable and credible manner by which it can now be found that what he has now is the result of the injuries during service, as opposed to being due to some other possible etiology, e.g., from cause(s) of postservice origin such as post service injuries or the aging process, or both. So, the Board is without a basis upon which to predicate entitlement to service connection for arthritis, including arthritis of the spine. A Skin Disorder, To Include As Due To Agent Orange Exposure While the STRs show that the Veteran had a urticarial reaction to penicillin as well as excision of a cyst from his neck, it is clear that neither of these resulted in any chronic residuals, and it is not otherwise shown or contended. Moreover, it is clear that his current actinic keratoses and basal cell cancers first manifested decades after his military service and his presumed in-service exposure to herbicides. Hence, the Veteran has not been diagnosed with any of the disabilities included on the list of herbicide-related disorders from 38 C.F.R. § 3.309(e) within the prescribed presumptive periods. Accordingly, this claim will now be considered on a direct service connection basis. See Combee v. Brown, 34 F.3d at 1042. There is no competent medical evidence which establishes that the Veteran's current actinic keratoses and basal cell cancers are in any way etiologically related to inservice herbicide exposure. Significantly, the Veteran has not submitted, or referenced any probative medical evidence which refutes the Secretary's findings of no casual connection between inservice herbicide exposure and disabilities, e.g., actinic keratoses and basal cell cancer. Thus, the Veteran's case must rest primarily upon his theory that inservice exposure to sun light is the cause of each of these disabilities. The STRs are negative for complaints of, treatment for, or findings of actinic keratoses and basal cell cancer. In fact, the Veteran was not diagnosed with such disorder until many years after his retirement from active duty. Evidence of a prolonged period without medical complaint and the amount of time that lapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The recent 2012 VA examination found, as had other VA examinations before it, that the actinic keratoses and basal cell cancer were due to excessive exposure to sunlight as a child, particularly in light of his fair complexion, and even cited supporting medical literature. That 2012 examination recorded a detailed history of the Veteran's exposure to sunlight. The absence of relevant findings in the STRs, the passage of many years without medical documentation, and the opinion expressed at the time of the 2012 VA examination form a preponderance of evidence which outweighs the probative value of the Veteran's lay statements by a wide margin. Accordingly, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a skin disorder, including as due to inservice herbicide exposure, and this claim must be denied. In reaching these determinations, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. ORDER Service connection for a respiratory disorder, to include asthma, to include as secondary to service-connected coronary artery disease and/or due to Agent Orange exposure, is denied. Service connection for arthritis, to include arthritis of the spine, is denied. Service connection for a skin disorder, to include as due to Agent Orange exposure, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs