Citation Nr: 1807643 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-15 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a lumbar laminectomy, claimed as a low back condition. 2. Entitlement to service connection for a skin disability, claimed as chloracne, to include as due to herbicide exposure. 3. Entitlement to peripheral neuropathy of the upper and lower extremities, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas In November 2015, the Board granted an initial compensable rating for a right knee disability. The Board then remanded claims for service connection for a low back disability, skin disability, and peripheral neuropathy of the upper and lower extremities for further development. The case has now returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran's claims. As provided in the November 2015 remand, the Board requested that the Veteran be provided VA examinations and medical opinions regarding the etiologies of his low back disability, skin disability, and peripheral neuropathy. In specific regard to his low back claim, the Board noted that, in an April 2012 VA physical therapy note, the Veteran indicated that he had been experiencing low back pain since 1967 when he was involved in an in-service accident. The Veteran was provided the requested VA examinations in December 2015. During a VA back conditions examination, the examiner diagnosed the Veteran with (1) herniated nucleus pulposus L4-5, (2) degenerative disc disease and degenerative joint disease of the lumbar spine, and (3) post laminectomy syndrome. The examiner noted that the Veteran reported that he fell from an armored personnel carrier in service. The examiner then opined that it was less likely than not that the Veteran's current low back conditions were due to the reported in-service injury. In support of this position, the examiner cited the Veteran's separation examination-which did not note a back injury-and stated that the Veteran developed symptoms too far removed from the reported fall in service. In June 2016, the examiner provided an addendum to his opinion, clarifying that he indeed had reviewed the Veteran's electronic files. However, the examiner stated that, ultimately, his opinion had not changed. During a December 2015 VA skin diseases examination, the Veteran reported that, during his deployment to Vietnam, he developed a chronic skin rash of the head, neck, and extremities. The Veteran stated that he has had this rash ever since. The examiner initially diagnosed the Veteran with chloracne. However, the examiner clarified that the Veteran actually had simple acne with residual scarring. The examiner then opined that because the Veteran did not have chloracne, the Veteran's current skin condition was less likely than note incurred in or aggravated by service. Additionally, the examiner noted that the Veteran's service treatment records (STRs) did not contain any notations regarding a skin condition. The examiner commented that the Veteran had received treatment from a private dermatologist and, once those records were received, he would supplement his comments. Treatment records regarding a skin condition from Baylor Medical Center and Dr. Carr were received in January 2016, but an addendum opinion was not issued. Lastly, during a December 2015 VA peripheral nerves examination, the Veteran reported experiencing numbness and tingling in his bilateral arms and legs about 2 years after exiting military service. The examiner diagnosed the Veteran with bilateral carpal tunnel syndrome and right ulnar neuropathy. The examiner commented that the Veteran reported treatment from private providers, but such records were not available for review. The examiner then stated that there was no documented evidence that the Veteran had peripheral neuropathy within one year of serving in Vietnam. Based on this lack of documentation regarding the one-year post-service period, the examiner opined that the Veteran's current condition was not related to Vietnam service. The examiner also commented that once the above-mentioned private treatment records were available for review, his comments would be updated. Treatment records from private provider Dr. Koganti were received in January 2016; however, an addendum opinion was not issued. A medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the instant case, the Board must remand all of the pending claims due to the inadequacy of the December 2015 VA medical opinions and the June 2016 addendum. Regarding the Veteran's low back claim, the examiner did not address the Veteran's lay contentions that he has continuously experienced back pain since service after an injury involving an armored personnel carrier in Vietnam. The Veteran has reported this contention consistently in his May 2014 substantive appeal, his June 2013 Notice of Disagreement (NOD), in an April 2012 VA physical therapy note, and in December 2015 examination itself. Turning to the December 2015 skin diseases opinion, the Board finds it deficient for two reasons. Firstly, it was based upon an incomplete disability picture as relevant private treatment records were received in January 2016, yet an addendum was not prepared-despite the examiner's remarks to the contrary. Secondly, the examiner did not address VA's duty to consider whether any other skin conditions besides chloracne could have been caused by herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As the Board previously noted in the November 2015 remand, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for a disability due to herbicide exposure. See Stefl, supra. Lastly, regarding the December 2015 peripheral nerves opinion, it too suffers from the same deficiencies as the skin diseases opinion. Despite the examiner's comments to the contrary, once private treatment records were received in January 2016, an addendum was not prepared. Additionally, in the November 2015 remand, the Board directed that an examiner issue an opinion regarding the causation of any current peripheral neuropathy, regardless of the date of onset. By focusing the opinion primarily upon when the peripheral neuropathy first became manifest, the examiner did not fully address the Board's prior request. Accordingly, in light of the above deficiencies, the Board must remand all of the Veteran's pending claims for the issuance of new VA medical opinions. Additionally, given the need to remand the foregoing issues, updated VA treatment records should also be obtained-particularly those records dated since December 2012. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file-particularly those dated since December 2012. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After the above has been completed to the extent possible, send the claims file to an appropriate VA clinician for the issuance of a medical opinion as to the nature and etiology of the Veteran's claimed low back disability. The clinician should thoroughly review the Veteran's entire claims file, including a copy of this Remand. If the clinician determines that a new examination is required, one should be scheduled. Thereafter, the clinician should address whether it is at least as likely as not (50 probability or more) that the Veteran's low back disability is related to service, to include an injury sustained in Vietnam after being thrown off of an armored personnel carrier. The clinician should comment upon the Veteran's reports of experiencing low back pain continuously since service. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim, including the Veteran's June 2013 NOD and his May 2014 substantive appeal. For the opinion requested, a complete rationale must be provided. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After Item (1) has been completed to the extent possible, send the claims file to an appropriate VA clinician for the issuance of a medical opinion as to the nature and etiology of any skin conditions. The clinician should thoroughly review the Veteran's entire claims file, including a copy of this Remand. If the clinician determines that a new examination is required, one should be scheduled. Thereafter, the clinician should address the following: (a) Please identify any skin condition by diagnosis. Please note that although the Veteran may not meet the criteria for a certain diagnosis at the present time, diagnoses made prior to and since the date of claim filing (June 2011) meet the criteria for a "current" diagnosis. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. (b) For each disorder identified, please state whether it is at least as likely as not (50 percent probability or more) that the disorder had its onset in, was caused by, or is otherwise related to service, to include as due to exposure to herbicides in Vietnam. In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. For any opinion provided, please provide a complete rationale. If you cannot provide an opinion without resorting to speculation, please explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After Item (1) has been completed to the extent possible, send the claims file to an appropriate VA clinician for the issuance of a medical opinion as to the nature and etiology of any peripheral nerve conditions. The clinician should thoroughly review the Veteran's entire claims file, including a copy of this Remand. If the clinician determines that a new examination is required, one should be scheduled. Thereafter, the clinician should address the following: (a) Please state whether it is at least as likely as not (50 probability or more) that any peripheral nerve condition is related to service, to include as due to exposure to herbicides in Vietnam. (b) If and only if the opinion provided with respect to Item (2) is supportive of a grant of service connection for a low back disability, please state whether it is at least as likely as not (50 probability or more) that any peripheral nerve condition was caused by a low back disability. (c) If and only if the opinion provided with respect to Item (2) is supportive of a grant of service connection for a low back disability, please state whether it is at least as likely as not (50 probability or more) that any peripheral nerve condition was aggravated beyond its natural progression by a low back disability. In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. For any opinion provided, please provide a complete rationale. If you cannot provide an opinion without resorting to speculation, please explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 6. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and afford him an opportunity to respond. Then, return the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).