Citation Nr: 1755033 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-18 528A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a skin disability, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for a disability manifested by back pain, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from January 1963 to January 1966 and from November 1967 to November 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board remanded these issues in October 2015 and March 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(7). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a disability manifested by back pain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The probative evidence of record indicates that it is less likely than not that the Veteran's current skin disabilities are causally or etiologically related to his active service, to include his presumed in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to notify was satisfied by a letter dated in August 2008. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also satisfied its duty to assist the Veteran. The Veteran's service treatment records, VA treatment records, and identified and available private treatment records have been associated with the record, as have lay statements from the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes the provision of a VA examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided VA skin disease examinations in November 2008 and June 2017. The examiners reviewed the record and considered the Veteran's reported symptomatology and medical history. The June 2017 VA skin disease examiner provided an opinion addressing the likely etiology of the Veteran's current skin disability, providing supporting explanation and rationale for all conclusions reached. The examinations were thorough, and the June 2017 VA skin disease examiner provided the information necessary to render a full decision on the issue. Therefore, the Board finds the examinations to be adequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no indication in the record that any additional evidence, relevant to the claim adjudicated in this decision, is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Compliance with Board Remands As noted in the Introduction, the Board remanded this case in October 2015 and March 2017. Relevant to the issue decided herein, the October 2015 Board remand directed the AOJ to readjudicate the appeal in consideration of evidence received since the statement of the case. The AOJ accomplished this action by issuing a supplemental statement of the case in December 2015. Relevant to the issue decided herein, the March 2017 Board remand directed the AOJ to obtain any outstanding VA treatment records from February 2016 through the present; associate any private treatment records from Dr. J. K. that had been scanned into the VA medical record system; ask the Veteran to identify and authorize release of any outstanding relevant private treatment records; provide the Veteran a VA examination as to his claimed skin disability; and then readjudicate the claim and issue a supplemental statement of the case, if warranted. Pursuant to the March 2017 Board remand, the AOJ obtained updated VA treatment records, associated with the record treatment records from Dr. J. K., asked the Veteran to identify any further private treatment records in a March 2017 letter, provided the Veteran with a VA examination in June 2017 that was consistent with and responsive to the March 2017 remand directives, and readjudicated the claim in a September 2017 supplemental statement of the case. The Veteran did not respond to the March 2017 letter or otherwise identify any further outstanding, relevant private treatment records. Accordingly, the Board finds that VA at least substantially complied with the October 2015 and March 2017 Board remands. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Legal Criteria Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain diseases may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). The only skin disability enumerated in the regulations is chloracne and other acneform diseases consistent with chloracne. 38 C.F.R. § 3.309(e). Analysis The Veteran seeks entitlement to service connection for a skin disability. He contends that he had no in-service treatment for the condition, but that the condition is causally related to in-service exposure to herbicide agents. See, e.g., VA Form 21-4138, Statement in Support of Claim, received in August 2008. He has given varying statements as to the date of onset for the condition. In his claim for service connection, he indicated that the condition began on December 1, 1987. See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received in April 2008. In August 2008, he indicated that the condition began "sometime back in 1975". See VA Form 21-4142, Authorization and Consent to Release Information to VA, received in August 2008. That same month, he indicated that he noticed a small outbreak of rash "sometime in the early 1970s". See VA Form 21-4138 received in August 2008. In June 2009, he indicated that the condition began "in the early 70s" and in 1973. See VA Form 21-4138 received in June 2009; correspondence from the Veteran received in June 2009. A June 2009 VA treatment note shows that he reported the condition "comes and goes since 1974". The November 2008 VA examiner diagnosed the Veteran with tinea versicolor. The VA treatment records show that the Veteran has been treated for plaque psoriasis and psoriasis-type eczema. The June 2017 VA examiner diagnosed the Veteran with psoriasis. Accordingly, there is competent evidence of a current skin disability, and the question remaining for consideration is whether the current skin disability is causally or etiologically related to the Veteran's active service. In regard to the Veteran's assertion that the current skin disability is causally related to in-service exposure to herbicide agents, the record confirms that he had in-country service in the Republic of Vietnam during the Vietnam era. Therefore, he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). However, the only skin disability listed as a disease associated with exposure to certain herbicide agents is chloracne and other acneform diseases consistent with chloracne. 38 C.F.R. § 3.309(e). There is no competent evidence of record showing that the Veteran has been diagnosed with such a condition. The Veteran's diagnosed tinea versicolor and psoriasis are not disease that have been associated with exposure to herbicide agents, and therefore may not be service connected on a presumptive basis under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). Nevertheless, the presumptive regulations do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Therefore, the Board will consider whether the Veteran is entitled to service connection for the diagnosed skin conditions on a direct basis, to include as due to the in-service exposure to herbicide agents. In that regard, the Board initially acknowledges the Veteran's assertions that the current skin disabilities are etiologically related to his in-service exposure to herbicide agents. The Veteran is competent to report his symptoms and their onset. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he has not been shown to possess the specialized knowledge and expertise necessary to render an opinion on a complex medical question such as the likely cause or etiology of a particular skin disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Because the Veteran is a lay witness, his opinions on medical matters such as the likely etiology of his diagnosed skin disabilities is not considered competent, and is therefore not probative in showing that the disabilities are related to his active service. To determine whether such an etiological relationship exists, the Board instead turns to the competent evidence of record, which in this case consists of the June 2017 VA skin conditions examiner's report and opinion. The June 2017 VA skin conditions examiner reviewed the record, examined the Veteran, and interviewed the Veteran. She noted the Veteran's reports of developing a rash manifested by "reddish" areas on the body and boils shortly after his separation from active service. The examiner opined that the Veteran's skin disability is less likely as not incurred in, caused by, or aggravated by his service, to include exposure to herbicide agents. As a rationale for that opinion, the examiner explained that psoriasis is not a disease that has been associated with exposure to Agent Orange by the National Academy of Sciences or any other sound medical or scientific information. The National Academy of Sciences conducts studies to "summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in Vietnam during the Vietnam era and each disease suspected to be associated with such exposure." Psoriasis is not a presumptive condition due to [Agent Orange] exposure. The Veteran's service medical records are silent as to any complaints of or treatment for psoriasis in service or within one year of separation from service. The Board affords probative weight to the June 2017 VA examiner's opinion. The examiner reviewed the record and considered the Veteran's military and medical history, to include his presumed exposure to herbicide agents. The examiner based her opinion on a review of relevant medical literature and on her knowledge and expertise as a medical professional. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). She explained that there is no medical or scientific evidence linking the Veteran's diagnosed skin disabilities to exposure to herbicide agents. The Board therefore accepts her opinion as probative evidence that it is less likely than not that the Veteran's current skin disabilities are related to his active service, to include his presumed in-service exposure to herbicide agents. The Board acknowledges that the Veteran separated from active service in the early 1970s and that he has contended that his skin disability first manifested in the early 1970s. As such, his contentions could be interpreted as asserting that the current skin disabilities had their onset during the Veteran's active service and have continued through the present. To the extent that the Veteran's does assert an in-service onset to the current skin disabilities, the Board again notes that the Veteran is competent to report the onset to his current symptoms. See Layno, 6 Vet. App. at 469. However, the service treatment records show to treatment for a skin disability. A November 1971 report of medical examination for separation shows that the Veteran had a normal evaluation of the skin, as do an August 1972 report medical examination for enlistment into the U.S. Airforce Reserves and an August 1973 periodic report of medical examination. Moreover, the Veteran denied current or past skin disease in reports of medical history dated in November 1971, August 1972 and August 1973. He has also been inconsistent in his reports as to the onset of his skin disabilities, giving onset dates of 1973, 1974, 1975, and 1987 in addition to placing onset in the early 1970s. Given the lack of evidence showing in-service treatment, the Veteran's denial of skin conditions on the reports of medical history, and the inconsistencies in the Veteran's own recollections as to the onset of his current skin disabilities, the Board finds his statements not to be credible evidence of an in-service onset. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant). Accordingly, the Board concludes that there is no credible basis for finding that the Veteran's current skin disabilities had their onset during his active service. In summary, the probative evidence of record indicates that it is less likely than not that the Veteran's current skin disabilities had their onset during his active service or are causally or etiologically related to his active service, to include his presumed in-service exposure to herbicide agents. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a skin disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a skin disability is denied. REMAND The Board finds that the issue remaining on appeal must be remanded for further development before a decision may be made on the merits. The Veteran seeks entitlement to service connection for a disability that is manifested by back pain. He asserts that the condition is secondary to his service-connected prostate cancer because it began shortly after he underwent radioactive seed implantation to treat his prostate cancer. A VA opinion was obtained as to the Veteran's claimed low back disability in August 2010. In its March 2017 remand, the Board found the August 2010 VA opinion to be inadequate for decision-making purposes because it was conclusory and did not include a discussion or explanation of the medical basis for the conclusion reached. Therefore, the Board directed that the Veteran be provided a VA examination as to the claimed low back disability. On remand, the Veteran was provided a VA back conditions examination in June 2017. The examiner reviewed the record, interviewed the Veteran, and examined the Veteran. He diagnosed the Veteran with degenerative disease of the lumbar spine with chronic low back pain and opined that it is less likely than not that the disability was caused or aggravated by the Veteran's prostate cancer, its residuals, and/or any treatment of such. As a rationale for the opinion, the examiner explained that the medical record does not show that the Veteran's degenerative disease of the lumbar spine was caused or aggravated by his service-connected prostate cancer. He also summarized specific evidence of record and commented as to the relative dates of that evidence. For example, he noted that a report IVP dated February 20, 2007, indicated under history that the Veteran had low back pain on the right side and that "this is a date preceding the seed implants placed in May 2007." The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Most of the probative value of an opinion comes from its rationale or underlying reasoning. Nieves-Rodriguez, 22 Vet. App. 295. In this case, the June 2017 VA examiner did not provide rationale for his negative nexus opinion beyond noting that the medical evidence of record does not show that the Veteran's treatment providers have associated his low back disability with his prostate cancer, providing summaries of the relevant evidence, and commenting as to the relative dates of the evidence. Such rationale does not require medical knowledge and does not explain the medical aspects of the Veteran's condition. The rationale also did not address the fact that the Veteran places onset of his current low back pain to shortly after his seed implantation surgery. Given the lack of medical rationale explaining and supporting the opinion, the Board finds the examiner's opinion to be inadequate for decision-making purposes. Therefore, the matter must again be remanded so that an addendum opinion may be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Forward the record and a copy of this remand to the VA clinician who conducted the June 2017 VA back conditions examination or, if that clinician is unavailable, to another similarly qualified VA clinician for preparation of an addendum opinion. If the clinician selected determines that the information requested below cannot be provided without further in-person examination of the Veteran, then such an examination should be scheduled. The VA clinician is asked to review the record and then respond to the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current low back disability was proximately due to or the result of the his service-connected disabilities, specifically to include his service-connected prostate cancer and the radioactive seed implantation procedure he underwent to treat that condition. b. If not, provide an opinion as to whether it is at least as likely as not that the Veteran's current low back disability was aggravated by the his service-connected disabilities, specifically to include his service-connected prostate cancer and the radioactive seed implantation procedure he underwent to treat that condition. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The examiner must note that an opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation and will necessitate a further opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). A complete rationale should be provided for any opinion given. An opinion is adequate when it is factually accurate, fully articulated, and soundly reasoned. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The examiner should discuss the significance, if any, of the Veteran's assertions that his current low back pain began shortly after his seed implantation surgery. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted for a low back disability. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs