Citation Nr: 21000363 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-08 998 DATE: January 5, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a skin disorder is denied. FINDINGS OF FACT 1. The Veteran’s back condition is not etiologically related to his active duty service. 2. The Veteran’s current actinic and seborrheic keratosis diagnosis is less likely than not related to active duty service, including as due to exposure to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a skin disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to December 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2011 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided testimony before the undersigned Veterans Law Judge at an October 2019 videoconference Board hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. In a December 2019 Board decision, the case was remanded back to the Agency of Original Jurisdiction (AOJ) for further development. That development having been completed to the extent possible, the matter is again before the Board for further appellate review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra Service Connection Establishing service connection generally requires competent 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. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a back disability The Veteran contends he hurt his back during active service after jumping from a helicopter while carrying a torpedo. First, the evidence shows a currently disability. Specifically, the January 2020 VA examiner noted the Veteran had diagnoses of lumbosacral strain and degenerative arthritis of the spine. Thus, the first element of service connection has been satisfied. Second, with regard to the in-service element, the Veteran’s lay testimony serves as credible evidence of an in-service injury to his back. Therefore, the second element of service connection has also been satisfied. Shedden, 381 F.3d at 1166-67. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed back condition and his service. In a January 2020 VA examination, the examiner noted the Veteran’s report of a back injury in 1975. He reportedly had mild back problems off and on and that it got worse in 2008. At the January 2020 examination, the Veteran had complaints of pain on extension of the spine. The January 2020 examiner opined that the Veteran’s back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event, including his credible assertion that he injured his back while jumping from a helicopter carrying heavy torpedoes. In support of that opinion, the examiner explained that there is no evidence of back pain for decades after service. The examiner’s opinion is entitled to great weight, as it is based upon a thorough examination of the Veteran and a comprehensive review of the claims file with adequate supporting rationale. The examiner’s opinion referenced the December 1975 separation exam that did not contain any back issues, and a VA treatment record of November 2010 that referenced degenerative changes similar to a September 2009 x-ray. The lack of objective evidence for that 34-year period between the two incidents weighs against finding a continuity of symptoms sufficient to establish a nexus. Additionally, the record contains conflicting accounts of when the Veteran’s current back pain started. In a March 2010 VA treatment note, the Veteran stated his low back pain started in 2006. In an August 2010 VA neuropsychology examination, the Veteran stated that he had a chronic back injury from his horse-riding accident. This accident reportedly occurred in July 2007. See September 2008 neuropsychology consult. Nevertheless, a causal relationship between the Veteran’s active duty service and his current back disorder could not be established because the large gap in treatment failed to establish a longitudinal trend of subjective complaints and objective findings. Given the lack of a nexus between the disorder on appeal and his active duty service, the Board concludes that service connection for his back disorder is not warranted. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a skin disorder The Veteran contends he has a diagnosis of actinic and seborrheic keratosis that he attributes to Agent Orange exposure while serving in the Republic of Vietnam. Service connection established on a direct basis requires competent evidence of a current disability, a precipitating in-service event, and a nexus between such an event and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). There are also numerous ways to establish a presumptive service connection. For instance, “[i]n 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in... Vietnam” during the Vietnam era. Procopio v. Wilkie, 913 F.3d 1371, 1373 (Fed. Cir. 2019). In such cases, Veterans may obtain service connection for certain diseases when the evidence might otherwise not indicate that service connection is warranted. See 38 C.F.R. § 3.303(d). Specifically, 38 C.F.R. § 3.307 provides that a Veteran who served in Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to a tactical herbicide agent, to include Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during his/her service. See 38 C.F.R. § 3.307(a)(6)(iii). However, here, service connection for the Veteran’s actinic and seborrheic keratosis cannot be awarded based on a theory of presumptive exposure to tactical herbicides because this particular disability is not one of the enumerated chronic diseases amenable to a presumptive service connection under 38 C.F.R. § 3.309(e). The Board will also consider whether service connection can be granted on a direct basis. The Veteran was afforded a VA examination in January 2020 to access the nature and etiology of his currently diagnosed skin condition. The examiner provided a medical opinion as to whether the Veteran’s actinic and seborrheic keratosis is at least as likely as not (50 percent or greater probability) incurred in or caused by active duty service, to include exposure to Agent Orange. The examiner opined that the Veteran’s skin condition was less likely than not incurred in or caused by service. The rationale was that there is no solid evidence of a causal relationship between Agent Orange and actinic and seborrheic keratosis. The examiner opined that the actinic and seborrheic keratosis are more likely than not from sun exposure. The examiner noted the Veteran’s skin abscesses in July 1975, and explained that the current skin condition of actinic and seborrheic keratosis are not related to the abscesses and that abscesses are not typically related to sun exposure. The Board notes that the Veteran is indeed competent to testify as to such observable symptomatology; for example, at the October 2019 Board hearing, the Veteran stated that he gets brown spots burned off his body by a VA doctor, and that the spots are quite possibly due to Agent Orange exposure. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, lay assertions do not constitute a competent clinical diagnosis of an existing disability nor are they adequate to establish a positive nexus with military service. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The issue is medically complex, as it requires specialized medical knowledge of the interpretation of signs and symptoms as well as diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been shown to possess such specialized medical knowledge, nor has he claimed to possess such knowledge. As a result, these lay assertions cannot constitute competent medical evidence in support of the claim, and the Board most heavily weighs the VA examiner’s opinion that there is no causal relationship between the Veteran’s current skin condition and active duty service, including herbicide agents. The Board finds the January 2020 opinion from the VA examiner that it is less likely than not that the Veteran’s claimed condition is incurred in or caused by service, to be of significant probative value. The examiner’s analysis shows a careful review of the STRs, including those related to skin conditions, and the post-service records, including the complaints of skin lesions and diagnoses of seborrheic and actinic keratosis in 2011, which was confirmed in February 2015. The Board finds the opinion of the VA examiner probative in that the examiner reviewed the pertinent medical records, conducted a personal examination of the Veteran, and provided a clear conclusion with a reasoned medical explanation. (Continued on the next page)   In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for seborrheic and actinic keratosis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.