Citation Nr: 18160854 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-56 844 DATE: December 28, 2018 ORDER Service connection for a low back disability is granted. Service connection for a neck disability is granted. Service connection for a skin disability of the hands, claimed as chemical burn or fungal infection residuals, is granted. REMANDED Service connection for a neurological disability, to include as secondary to low back or neck disability, is remanded. A compensable initial rating for service-connected right spermatocele is remanded. A disability rating greater than 10 percent for service-connected gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The Veteran has been diagnosed with lumbar spine degenerative disc disease (i.e., arthritis) on May 2013 VA examination and service treatment records (STRs) show no back problems on enlistment examination, complaints of low back pain at multiple points during service, and notations of “[r]ecurrent lower back pain secondary to excessive lifting since 1985 to present” in the physician’s summary of his separation report of medical history. While the May 2013 VA examiner opined that the Veteran’s low back disability is simply due to the aging process, that opinion is inadequate because it fails to adequately consider the above positive evidence, the Veteran’s several competent statements (including on May 2013 examination) in the record reporting continuous low back pain since a lifting injury in service (which is consistent with notes in his STRs described above), or the significance of March 1994 private radiological records (just over one year post-service) indicating “[p]ossible intervertebral disc disease at L5-S1.” Accordingly, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s current low back disability is presumptively related to service as a chronic disease under 38 U.S.C. § 1112 based on continuity of symptoms. 2. Although there is nothing in the Veteran’s STRs regarding neck complaints, diagnoses, or treatment, cervical spondylosis was diagnosed on May 2013 VA examination with confirmation of cervical spine arthritis in imaging studies. March 1994 private records (just over a year post-service) show he reported a one-year history of neck symptoms, diagnosed as cervical radiculopathy, and an April 1994 neurosurgical consultation noted headache and diffuse neck pain one year prior that had continued with numbness in the fingers and face and found he had “some cervical degenerative disease in his neck [that]…could be responsible for all his symptom[s].” While the May 2013 VA examiner opined that the cervical spine disability is a natural part of aging and not caused by specific incidents in the past, this opinion is inadequate for failure to even acknowledge, much less discuss, the aforementioned positive evidence or the Veteran’s competent reports of persistent “joint” and “back” pain—which an April 2011 correspondence indicates includes the neck and upper back. Therefore, the Board finds the evidence is at least in relative equipoise as to whether symptoms of cervical degenerative disease began during the first post-service year (i.e., the presumptive period for arthritis as a chronic disease under 38 U.S.C. § 1112) and have persisted since. 3. The Veteran’s STRs show he (1) complained of a rash on the left hand in November 1982 that was diagnosed as a probable contact rash, (2) sustained a first degree burn and possible second degree burn of the left hand in September 1984, (3) was diagnosed with contact dermatitis with a resolving secondary infection in February 1985, (4) was diagnosed and treated for a rash on the arm, hands, and buttock that was diagnosed as a tinea infection in April 1985, (5) was treated for a recurrence of that infection, diagnosed as tinea cruris that was “probably id [sic] reactions to the fungal infection,” in August 1990 (at which time he also reported the problem had been recurrent since initial treatment), and (6) was noted to have “[s]kin disease, contracted fungus on hands in Egypt, 1985, treated with salve and fungal cream” that recurred with “approximately 2 episodes per year” in the physician’s summary of his separation report of medical history. Although a May 2013 VA examiner found no evidence of any skin condition now or in the past, that finding is inadequate because it fails to adequately consider the aforementioned positive medical evidence or the Veteran’s competent, consistent lay reports of a fungal infection affecting his hands in service that had intermittently recurred since initial onset in 1985 (at which time a fungal infection is documented by STRs), including his specific assertion that the condition was not active during the negative May 2013 examination. Considering the above, the Board finds that there is competent and credible medical and lay evidence reasonably showing he incurred a skin condition affecting the hands in service that has persisted, despite being intermittently recurrent and remitting, since that time. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 3. The criteria for service connection for a skin disability of the hands, claimed as chemical burn or fungal infection residuals have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1982 to December 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision. The Board notes that the matters of service connection for joint pains, fatigue, and muscle cramps were previously on appeal, but an August 2016 rating decision granted service connection for this claimed pathology as part of chronic fatigue syndrome; therefore, those matters are now compensated as part of a service-connected disability, the pertinent appeals have been granted in full, and the Board no longer has any appellate jurisdiction over them. Similarly, although the Veteran had properly appealed the initial rating assigned for his service-connected psychiatric disability, he specifically limited the issues on appeal to those noted above in his November 2016 substantive appeal perfecting his claims. For the reasons outlined above, the Board is granting service connection for the claimed low back, neck, and skin disabilities noted above, obviating the need for any further substantive discussion thereof at this time.   REASONS FOR REMAND 1. Service connection for a neurological disability, to include as secondary to low back or neck disability, is remanded. A review of the record shows the Veteran has been treated for complaints of radiating pain and numbness as well as cervical radiculopathy. While the rating decision on appeal acknowledged these symptoms, it denied the instant claim because they were related to his cervical disability, which was not service-connected at the time. Upon further neurological examination in June 2016, the Veteran added that he had numbness of the left side of the face, arm, and leg. The examiner at the time acknowledged evidence of cervical disc bulging and radiculopathy in the record, but made no positive central nervous system diagnosis. Confusingly, a contemporaneous June 2016 VA cervical spine examination explicitly indicates the Veteran had no cervical radicular signs, symptoms, or pain. Now that the Board has granted service connection for a cervical spine disability, the ambiguity surrounding the precise nature and cause of the Veteran’s neurological complaints must be resolved so the Board can determine whether the Veteran indeed has cervical radiculopathy and, if so, whether this accounts for all of his claimed neurological symptoms noted above (particularly the reported pain in the left leg and face), because the cause of any neurological problems other than cervical radiculopathy would require further clarification. 2. A compensable initial rating for service-connected right spermatocele and a disability rating greater than 10 percent for service-connected GERD are remanded. A review of the record shows the Veteran’s last examination evaluating his right spermatocele was conducted in May 2013. Similarly, the Veteran’s GERD was most recently examined in June 2016, well over two years ago. As capturing an accurate current disability picture is critical to a final adjudication in this matter, a remand to arrange for a contemporaneous examination is appropriate.   The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an examination by a neurologist or orthopedic spine surgeon to determine the nature and cause of the Veteran’s claimed neurological disability. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Does the Veteran have cervical radiculopathy? The examiner’s finding here must be reconciled with all other evidence of record, to specifically include (but not limited to) consideration of the notations of radiating pain and numbness diagnosed as cervical radiculopathy in the Veteran’s treatment records, his reports of left sided arm, face, and leg symptoms, and the negative radicular findings on June 2016 VA cervical spine examination. (b.) Please also identify any neurological disability entities other than cervical radiculopathy found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (c.) For each disability diagnosed other than cervical radiculopathy, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY any service-connected disabilities (i.e., chronic fatigue syndrome, posttraumatic stress disorder, GERD, right spermatocele, lumbar spine, or cervical spine disabilities). A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, arrange for the Veteran to be examined by a gastroenterologist to determine the current severity of his service-connected GERD. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in sufficient detail to allow for application of the pertinent rating criteria. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Then, arrange for the Veteran to be examined by a genitourinary specialist or other appropriate physician to determine the current severity of his service-connected right spermatocele. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in sufficient detail to allow for application of the pertinent rating criteria. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel