Citation Nr: 21068010 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-13 725 DATE: November 8, 2021 ORDER Service connection for a lumbar spine disability is granted. Service connection for bilateral foot blisters is granted. Service connection for a skin rash is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's lumbar spine disability was incurred in service. 2. The Veteran's bilateral foot chloracne is presumed to be related to exposure to herbicide agents during his active military service. 3. The Veteran's chloracne is presumed to be related to exposure to herbicide agents during his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral foot chloracne have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for chloracne have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1967 to December 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for a back disability, blisters under feet, skin rash, and hypertension. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2019. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in December 2019, at which time they were remanded for additional evidentiary development. Service Connection Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including chloracne, shall be service-connected, even though there is no record of such disease during service unless the presumption is rebutted. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307(d), 3.309(e). Notwithstanding the presumptive provision, a claimant is not precluded from establishing service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). "Service in Vietnam" for purposes of applying the herbicide presumption includes both the landmass and the waters offshore. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). The Federal Circuit, in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), overruled Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), and concluded that service in Vietnam, and the waters offshore, includes the landmass and the territorial sea of the Republic of Vietnam. The territorial sea is defined as the 12 nautical miles surrounding Vietnam. See Procopio, 913 F.3d at 1375-1376, 1379-1380. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 1. Entitlement to service connection for a lumbar spine disability Throughout the rating period on appeal, the Veteran has been assessed with spinal stenosis and Intervertebral Disc Syndrome (IVDS) (lumbar spine disability). Thus, a present disability has been shown by the evidence. The Veteran testified at the hearing in March 2019 and indicated that he injured his back in service. He indicated that he injured his back while building an ammunition bunker and walking up a ladder and also while picking up a bomb in service. His service-treatment records reveal that he fell in July 1969 and was assessed with muscle spasms in June 1969. Thus, the Board finds that in-service incurrences have been shown by the evidence. Having established a current disability and in-service incurrences, the remaining question is whether the Veteran's current lumbar spine disability is related to his in-service incurrences. The Veteran was afforded a VA examination in May 2021, at which time the examiner concluded that the Veteran's lumbar spine disability was incurred in service. The examiner reasoned that the Veteran was a combat engineer in service, which entailed heavy physical exertion, and his service-treatment records reveal numerous musculoskeletal complaints. Moreover, the Veteran stated that he experienced back pain in service and has continued since service. Accordingly, the examiner opined that it was at least as likely as not that his lumbar spine disability was incurred in service. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's lumbar spine disability was incurred in service. In this regard, the June 2021 examiner conducted a review of the record and examination of the Veteran and concluded that his lumbar spine disability was incurred in service. The examiner's opinion is consistent with the evidence of record, including the Veteran's military occupational specialty (MOS), service-treatment records, and statements indicating that his back pain commenced in service. In view of the foregoing, and in consideration of the credible lay and medical evidence, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran's lumbar spine disability was incurred in service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 2. Entitlement to service connection for bilateral foot blisters; 3. Entitlement to service connection for a skin rash The Veteran served in country in Vietnam from May 1968 to May 1969. Thus, exposure to Agent Orange is presumed. The Veteran underwent skin and bilateral foot VA examinations in May 2021, at which time he was assessed with chloracne over his bilateral foot area and in general. The examiner noted that the Veteran's description of the rash appearing in different areas of his body is consistent with the clinical description of chloracne, with generalized lesions appearing in multiple body sites. With respect to the requirement that the disability manifests to a degree of 10 percent disabling within a year after service in Vietnam as set forth under 38 C.F.R. § 3.307(a)(6)(ii), the Board finds that the evidence is at least in equipoise on this point. In this regard, during the hearing in March 2019 and examination in May 2021, the Veteran indicated that he had rashes and blisters over his feet when he returned from Vietnam. The Board finds this is indicative of deep acne other than of the face or neck, warranting a 10 percent rating pursuant to Diagnostic Code 7829. 38 C.F.R. § 4.118. In sum, resolving all doubt in favor of the Veteran, the weight of the evidence establishes that the Veteran has been diagnosed with chloracne and that he had presumed exposure to herbicide agents during service. As such, service connection is warranted for chloracne on a presumptive basis. No evidence of record rebuts the presumption in this case. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Veteran has been assessed with hypertension and asserts that it was incurred in service, including due to his conceded exposure to Agent Orange. Although VA has not conceded a relationship between hypertension and Agent Orange, it is significant to note that prior to 2006, the National Academy of Science (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its 2006 Update, NAS elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorizing of hypertension beginning in its 2006 Update and subsequent Updates. See Fed. Reg. 20, 308 (Apr. 11, 2014). The NAS updates are published in the Federal Register by VA, and thus VA is on notice as to the information contained therein. Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. at 20, 309. The suggestive evidence of an association is sufficient to establish an "indication" that the current disability "may be related" to herbicide exposure during service, as contemplated by 38 U.S.C. § 5103A(d)(2)(B). Although a VA examination was performed in May 2021, the examiner did not provide an opinion as to whether the Veteran's hypertension was related to his exposure to Agent Orange. Thus, the Board finds that an addendum medical opinion is warranted on remand. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from June 2021 to the present. 2. After completion of #1, forward the claims file, including a copy of this remand, to the May 2021 examiner to provide an addendum opinion. If the examiner is unavailable, forward to an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should conduct a review of the record in its entirety, including a copy of this remand, and respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran's hypertension is etiologically related to his period of active service, to include conceded exposure to Agent Orange? The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the Veteran's March 2019 hearing testimony indicating that he had blood pressure issues in the early 1970s and his conceded exposure to Agent Orange. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.