Citation Nr: 1746970 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 96-39 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to an initial rating in excess of 10 percent for lumbosacral facet arthritis with thoracolumbar degenerative disc disease. 4. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.Z., Counsel INTRODUCTION The Veteran served on active duty from September 1962 to April 1964, from November 1972 to September 1978, and from December 1990 to May 1991. She served in the Southwest Asia Theater of Operations during the Persian Gulf War Era from February 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2002, the Veteran testified before a Veterans Law Judge who is no longer employed by the Board. By correspondence dated in July 2006, the Veteran was informed that she had the right to have another hearing. She indicated in August 2006 correspondence that she did not want an additional hearing. 38 U.S.C.A. §§ 7102, 7107 (West 2002); 38 C.F.R. §§ 19.75, 19.76, 20.703, 20.704, 20.707, 20.717 (2014). A November 2006 Board decision denied service connection for chronic obstructive pulmonary disease and bronchitis, disabilities of the cervical and lumbar spine, major depressive disorder, and a skin disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion for Partial Remand, in a January 2008 Order, the Court remanded the claims for service connection for respiratory disabilities, cervical and lumbar spine disabilities, major depressive disorder, and a skin disability. The Board remanded the claims for additional development in July 2008. A January 2009 rating decision granted service connection for major depressive disorder and assigned a 50 percent rating, effective March 1, 2002. Consequently, that issue is no longer before the Board. An October 2009 Board decision denied service connection for respiratory disabilities, cervical and lumbar spine disabilities, and a skin disability. The Veteran appealed that decision to the Court. Pursuant to a Joint Motion for Partial Remand, in a March 2010 Order, the Court remanded the issues of entitlement to service connection for respiratory disabilities, cervical and lumbar spine disabilities, and a skin disability. The Board remanded those claims in October 2010 for development in compliance with the March 2010 Joint Motion and again in August 2012 because the prior requested development was not fully completed. The appeals were remanded a third time in October 2013. At the time of the August 2012 remand, claims for service connection for cervical and lumbar spine disabilities were also on appeal. A February 2013 rating decision granted service connection for lumbosacral facet arthritis with thoracolumbar degenerative disc disease and degenerative disc disease of the cervical spine. The Veteran perfected an appeal on the issue of entitlement to initial ratings in excess of 10 percent for those disabilities in April 2014. A March 2014 RO rating decision granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, effective March 28, 2012. The appeal was subsequently remanded again in November 2014, and was certified to the Board in August 2015. Since that time, the Veteran's representative has filed two extension requests, which were granted, along with Privacy Act requests, which have also been fulfilled. The Board notes that the Veteran's service connection claims for respiratory and skin disorders were previously styled as due to an undiagnosed illness. However, as the Veteran's respiratory and skin disorders have been attributed to known clinical diagnoses, analysis of the Veteran's claim under 38 U.S.C.A. § 1117 is not warranted, and the Board has recharacterized the Veteran's claims accordingly. The issues for higher initial ratings for lumbosacral facet arthritis with thoracolumbar degenerative disc disease and cervical spine degenerative disc disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, a respiratory disorder, diagnosed as chronic obstructive pulmonary disease (COPD) and bronchitis, is related to service. 2. Resolving all doubt in favor of the Veteran, a skin disorder, diagnosed as seborrheic keratosis, actinic keratosis and squamous cell carcinoma (SCC), is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder, diagnosed as COPD and bronchitis, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for service connection for a skin disorder, diagnosed as seborrheic keratosis, actinic keratosis and SCC, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Board is granting in full the benefit sought on appeal with respect to the claims decided herein. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). Additionally, the Board notes that a supplemental statement of the case (SSOC) was not issued subsequent to the receipt of a July 2016 VA opinion regarding the Veteran's respiratory disorder. However, as the Board is granting the Veteran's claim for such, there is no prejudice to her and the Board may consider this new evidence in the first instance. II. Legal Criteria & Analysis The Veteran claims her respiratory and skin disorders are due to exposure to an oil fire, which she toured for one day, and exposure to oil-fire smoke, which she was exposed to for a period of three months, during service. She also handled different types of fuels as a petroleum supply specialist. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.10; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Here, as Veteran has confirmed service in the Southwest Asia Theater of Operations during the Persian Gulf War Era, her alleged environmental exposures are conceded. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claims on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. A. Respiratory Disorder Here, the Veteran has current diagnoses of bronchitis and COPD, and her alleged in-service injury has been conceded; thus, the following discussion will focus on whether a nexus between the two has been established. As noted above, the Veteran had multiple periods of service. Her relevant history shows an episode of acute bronchitis in May 1987, between periods of service, but that she was evaluated to be in excellent health during a December 1990 entrance examination for her last period of service. Service medical records further show that, in May 1991 after her return from Saudi Arabia, the Veteran complained of symptoms of bronchitis, cough, and congestion, for one and a half to two weeks, that started with a cold. X-rays in May 1991 found no evidence of active cardiopulmonary disease. After service, VA records show that in an August 1993 Persian Gulf Registry, the Veteran gave a history of recurrent bronchitis. In November 1994, pulmonary function testing found a moderate obstructive lung defect. On VA examination in October 1997, the diagnosis was chronic obstructive pulmonary disease due to smoking. Private medical records show that the Veteran has bronchitis attributed to smoking, and, in September 2006, the Veteran had a 40-pack year history of smoking. Here, there are multiple opinions of record concerning the etiology of the Veteran's respiratory disorder. In particular, the Board notes that November 2012 and December 2013 VA examinations, along with a November 2015 private opinion, have all previously been deemed inadequate by the Board. Since such determination, two more opinions have been added to the record-a July 2016 VA medical opinion and a July 2017 private opinion. The July 2016 VA examiner found that it was less likely than not that the Veteran's respiratory disorders were related to her exposures during service. In this regard, the examiner found that the Veteran's long history of tobacco use was more likely than not the contributing cause of her respiratory disorders, rather than her brief exposure to oil-fire smoke during service. Conversely, the physician who authored the July 2017 private opinion found that the Veteran's respiratory disorders were more likely than not caused by her in-service exposures. The physician disagreed the July 2016 VA examiner's finding that the Veteran's disorders were related to smoking, explaining that the Veteran's treatment in May 1991 was compatible with constrictive bronchiolitis described by many soldiers with the same petroleum fire and smoke exposure. He added that the pattern shown by the Veteran's pulmonary function test was diagnostic of such an exposure. Based on the evidence outlined above, the Board finds the medical evidence submitted by the Veteran highly probative, as such opinion was made by a medical professional familiar with the Veteran's in-service and post-service history, and includes a rationale for the opinion offered, such that the evidence is at least in relative equipoise regarding whether the Veteran's respiratory disorders are related to service. Therefore, the Board resolves all doubt in favor of the Veteran and finds that service connection for a respiratory disorder, diagnosed as COPD and bronchitis, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. B. Skin Disorder Similar to the discuss above, the Veteran has diagnoses of skin disorders including actinic keratosis, seborrheic keratosis and SCC during the appeal period, and her alleged in-service injury has been conceded; thus, the following discussion will focus on whether a nexus between the two has been established. Service treatment records show that the Veteran had a rash on her elbows during a May 1991 Southwest Asia Demobilization Evaluation examination. On Army Reserve examination in February 1993, no skin abnormality was identified. After service, a January 1998 VA dermatology consultation noted a two-year history of a facial rash diagnosed as seborrheic dermatitis. The Veteran has undergone multiple dermatology consultations and examinations during the course of the appeal period. While not all of the opinions expressed are supported by a full rationale, many are favorable to the Veteran's claim and lend support to a private opinion submitted by the Veteran, discussed further below. Accordingly, the Board has included such opinions in the discussion. In particular, during an October 2008 VA dermalogical examination, the Veteran related that she had a history of pink scaly spots on her left forehead since serving in Saudi Arabia, and that they have gradually gotten bigger, and that she previously had a bump removed from her right arm in 2000 that was suspected to be skin cancer. The examiner diagnosed the Veteran with seborrheic dermatitis and actinic keratosis. The examiner noted that both disorders were common in the general population and were less likely than not related to the Veteran's service. However, she went on to state that " the sun exposure one may encounter in the service if working outside in desert environments may predispose one to develop actinic keratosis/skin cancers." In December 2010, the Veteran underwent a VA dermalogical examination, which noted that the Veteran had excision and repair of SCC of her left forehead in December 2008. The examiner found that the Veteran's seborrheic dermatitis was not related to service, though did not provide a rationale. He did find, however, that the Veteran's SCC was at least as likely as not related to service. In December 2013, the Veteran underwent another VA examination. The examiner found that the Veteran's actinic keratosis was caused by sun exposure and that she has a history of developing actinic keratosis which resolves without residuals. Thus, the examiners concluded that any current actinic keratoses are not the same ones as in service, and were caused by current sun exposure. The examiner then found that the Veteran's seborrheic keratosis was caused by the natural ageing process and not sun exposure. The examiner did not specifically state why the Veteran's in-service exposure to oil-fire smoke and fuel was not the cause of her claimed disorders. In November 2015, the Veteran submitted a statement from a private physician who noted the Veteran's history of seborrheic keratosis, actinic keratosis and SCC. He opined that the Veteran's actinic keratosis and SCC were related to her in-service environmental exposures. In particular, he noted it was well documented that oil shale workers have a higher incidence of actinic keratosis after controlling for all other variables, and that such was a premalignant condition correlated with the development of skin cancer. Based on the evidence outlined above, the Board finds the medical evidence submitted by the Veteran highly probative, as such opinion was made by a medical professional familiar with the Veteran's in-service and post-service history, and includes a rationale for the opinion offered, such that the evidence is at least in relative equipoise regarding whether the Veteran's skin disorders are related to service. Indeed, some VA examiners have also indicated that the Veteran's actinic keratosis and SCC could have been caused by her in-service sun exposure. While the November 2015 private physician did not specifically attribute the Veteran's seborrheic keratosis to service, he did mention such diagnosis in the relevant history and the Board will construe his statement broadly and in favor of the Veteran. Therefore, the Board resolves all doubt in favor of the Veteran and finds that service connection for a skin disorder, diagnosed as seborrheic keratosis, actinic keratosis and SCC, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a respiratory disorder, diagnosed as COPD and bronchitis, is granted. Service connection for a skin disorder, diagnosed as seborrheic keratosis, actinic keratosis and SCC, is granted. REMAND Pursuant to the Board's November 2014 remand, the Veteran was afforded with VA examinations for her cervical and lumbar spine disorders in December 2014 and July 2015. The Veteran's representative has argued that such examinations are inadequate. In particular, the representative argued that the December 2014 and July 2015 examiners concluded they could not approximate the Veteran's additional limitation of motion in terms of degrees during flare-up without resorting to mere speculation, as she was not being examined during a flare-up. However, the examiners did not state whether the inability to provide such information was due to their own limitation of knowledge or that of the medical community. The Veteran's representative has also argued that such examinations did not adequately consider the Veteran's lay statements, particularly with regard to flare-ups. Additionally, the Veteran's representative has argued that a retrospective opinion on both disabilities is required. In particular, the appeal period begins in November 1994, and the examinations thus far obtained have only addressed the Veteran's current severity of her spine conditions. Furthermore, the Veteran's representative has alleged he did not receive a copy of the July 2015 SSOC until January 2016, following a Privacy Act request. He has argued that such deprived him of a reasonable opportunity to respond prior to certification on the Veteran's case to the Board. The Board notes that he was copied on the July 2015 SSOC, but such did not include his mailing address. Accordingly, the AOJ should ensure the Veteran and her representative are provided with a timely copy of the SSOC resulting from this remand. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of her lumbar and cervical spine disabilities. A rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 2. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran and her representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the matters 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 that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs