Citation Nr: 21068725 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-04 294 DATE: November 12, 2021 THE ISSUES 1. Entitlement to service connection for degenerative joint disease, lumbar strain, to include as secondary to service-connected bilateral knee disability. 2. Entitlement to service connection for bilateral pes planus. 3. Entitlement to service connection for skin condition/rash, to include as due to herbicide exposure. REMANDED Entitlement to service connection for degenerative joint disease, lumbar strain, to include as secondary to service-connected bilateral knee disability, is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for skin condition/rash, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran had active service in the Army from August 1969 to May 1971. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs Regional Office (RO). The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in August 2018. These matters were previously before the Board in March 2019 and in December 2020 at which point they were remanded for further development. 1. Entitlement to service connection for degenerative joint disease, lumbar strain, to include as secondary to service-connected bilateral knee disability, is remanded. The Veteran contends that his claimed lower back disability is due to an in-service motor vehicle accident, or that alternatively, his claimed lower back disability has been aggravated by his service connected osteoarthritis of both his right and left knees. The Veteran testified, and the service treatment records reflect, that he was involved in a motor vehicle accident during a rescue mission while in the Army. During the accident, the Veteran ended up in the wheel well of the jeep with his knees in the dashboard and his back stuck in that position. He had to be pulled out of the car and could not stand. The following morning, he was taken to the 71st Evacuation Hospital where he was evaluated and treated for muscle sprain with muscle relaxants. The Veteran testified that he has had lower back pain since the incident and that his low back has followed the normal progression of worsening following a motor vehicle accident: initial trauma, degenerative development, intermittent flare-ups and arthritis. The Veteran also reported that he was treated for back pain at the Delgado Community College Vocational Rehabilitation Center from in approximately 1975 and 1978. He was told that he had an existing back issue and if further degeneration occurred, surgery would be required. The physicians that the Veteran consulted with at the Center prescribed pain medication and adhere to the parameters and limits imposed by his back condition. The Veteran reported that the treatment records are no longer available because the Center closed in the late 1980s and that treatment records were destroyed after 5 years. The record reflects that the Veteran's low back strain improved to the baseline, but several years later, the pain returned. The record does not show that the Veteran sought treatment for his back from 1978 to 2015. The Veteran was afforded a VA examination for his back in June 2015. The examiner diagnosed him with lumbosacral strain and degenerative arthritis of the spine. As of the June 2015 VA examination, the Veteran was complaining of chronic back pain with a baseline of 1-2 out of 10, with occasional exacerbations related to some activities. At the time of the June 2015 VA examination, the Veteran did not report any stiffness, was not receiving treatment, including physical therapy and injections, for low back pain. The examiner opined that the Veteran's earlier low back pain condition had resolved and that based on the x-rays, the degenerative joint disease in his low back was compatible with the aging process. As such, the examiner found that the Veteran's lumbar back condition was less likely than not incurred in or caused by the back pain during service. The Veteran is service connected for osteoarthritis of both his right and left knees stemming from the motor vehicle accident in service. Because the June 2015 VA medical opinion only addressed direct service connection for the Veteran's back disability, the Board remanded the issue in its March 2019 decision in order to obtain an addendum VA medical opinion to determine whether the Veteran's back disability was aggravated by his service-connected osteoarthritis of the knees. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a new VA examination for his claimed lumbar spine disability in November 2019. The examiner confirmed a diagnosis of degenerative arthritis of the spine and a back sprain. The examiner found that the Veteran's low back disability was less likely than not proximately due to or the result of his service connected bilateral knee disability because "knee surgery is generally not a causative factor for back pain." The examiner went on to note that the arthritis of the back "likely developed independently of the arthritis of the knees..." and that it "[was] likely age related." The Veteran submitted private ongoing treatment records for his lower back and bilateral knee disabilities. In order to obtain an opinion which considered these new treatment records, the RO sought an additional addendum opinion in April 2020. The examiner found that the Veteran's back disability was less likely than not related to his motor vehicle accident in service, stating that the new medical records did not affect or alter the rationale. However, neither examiner gave a clear opinion as to whether the Veteran's lumbar spine disability was at least as likely as not aggravated beyond its natural progression by his service-connected bilateral knee disability. The Board again remanded the issue in its December 2021 decision in order to obtain an addendum VA medical opinion to determine whether the Veteran's back disability was aggravated by his service-connected osteoarthritis of the knees. McLendon, 20 Vet. App. 79 (2006). The Veteran was afforded a new VA examination for his claimed lumbar spine disability in January 2021. The examiner confirmed a diagnosis of degenerative arthritis of the spine and a back sprain. The examiner found that the Veteran's low back disability was less likely than not proximately due to or the result of his service-connected bilateral knee disability and cited medical literature stating that unless the Veteran's gait had been altered, one joint disability would not cause injury in another joint. The examiner explained that there was no evidence the Veteran suffered from significant or prolonged periods of altered gait related to his knee disabilities. The examiner did not, however, address the theory of aggravation, as expressly directed by the Board in its December 2020 remand. Therefore, the Board finds that a remand is necessary in order to afford the Veteran with an addendum opinion which complies with the December 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for bilateral pes planus is remanded. The Veteran's entrance examination reflects that he had pes planus prior to entry into service. The Veteran testified that he was not aware that he had this condition prior to joining the service. Service treatment records do not show complaints of or treatment for pes planus in service. The Veteran claimed that the nature of his military service in the Republic of Vietnam, and in the Army generally, cumulatively aggravated his pes planus because he did not have issues with his feet prior to entering service. The Veteran described the following types of activities that aggravated his pes planus: rigorous basic training, close order drills, forced marches that caused pain in the plantar areas; advanced and leadership training including riot control training and "stomp and drag"; post training assignment at Fort McPherson requiring 12-hour shift work at gate duty which consisted of constant walking on cement to control traffic and shotgun guard duty along gravel railroad spurs; and overseas duty in Vietnam including walking on uneven loose soil and performing in the role of machine gunner with twin M-60s while standing on top of ammunition cans in the back of a gun jeep while underway running convoys, which caused twisting, discomfort and pain. The Veteran also reported that he was given boots that had no lifts or anything to accommodate flat feet. The Veteran's feet started bothering him immediately following his separation from service. For the first three years following his separation from service, the Veteran attended college for Industrial Technology. During this time, the Veteran reported that he self-treated by making his own inserts, given that he was an instructor of orthotics and prosthetics manufacturing. The Veteran testified that sometime between 1975 and 1976 he consulted with and was examined by Dr. W., who prescribed custom arch supports and using well-built shoes with built-in support. The treatment records have been destroyed and are therefore no longer available. The medical records show that the Veteran continued to have problems with his feet. Until he retired, the Veteran followed the treatment prescribed by Dr. W. and later consulted with a podiatrist who recommended that he wear more causal Rockport brand shoes which are known for providing additional arch support, and New Balance tennis with less flexible soles. The Veteran has adhered to this advice and has also used over the counter supports for his shoes. During an October 2016 medical appointment, the Veteran reported having pain across the balls of both feet. He also stated that he was last seen by a private podiatrist several years ago. There is evidence in the record that the Veteran's pes planus only started to cause him problems after service and that he started to use shoe inserts shortly after service. In the March 2019 decision, the Board found that it could not make a fully-informed decision on the issue of service connection for pes planus because neither a private nor a VA examiner had opined whether the Veteran's disability was aggravated beyond its natural progression during service. Therefore, the Board remanded the matter so that a VA examination and associated medical opinion could be obtained. McLendon, 20 Vet. App. 79. In pertinent part, the Board asked the examiner to opine whether the Veteran's pes planus was clearly and unmistakably not aggravated by service, and if so, whether any increase in severity was clearly and unmistakably due to its natural progress. If the examiner found that the condition was not aggravated by service, he or she was asked to opine whether it was at least as likely as not related to in-service injury, event, or disease, including the rigors of military service, such as basic and advanced training, riding vehicles while standing on the back of ammunition cans, walking on gravel roads, and standing on hard surfaces while working 12-hour shifts as part of the Military Police. The Veteran was afforded such an examination in November 2019. However, the November 2019 VA examiner only confirmed that the Veteran's condition preexisted service, that there were no records of foot pain while in service or thereafter, and that therefore, she was unable to confirm aggravation. Because the opinion did not comply with the March 2019 Board remand directives, an addendum opinion was obtained by a separate examiner in April 2020. The April 2020 examiner stated that there was "no evidence of aggravation, as there were no complaints in service nor were there complaints proximate to service." The examiner cited a lack of documentation of foot pain in the service treatment records, and while noting the Veteran's contentions to the contrary, cited a lack of documented medical treatment soon after separation from service. As noted above, the Veteran has testified that he began experiencing increased foot pain while in service. The Veteran is competent to testify about symptoms of pain in service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that neither examiner opined as to whether the Veteran's pes planus clearly and unmistakably was not aggravated by service. Instead, each opinion relies on the absence of documented treatment in service, and neither address the Veteran's contentions that he suffered increased foot discomfort in service. Therefore, the Board found in its December 2020 decision that a remand was necessary in order to obtain an addendum opinion which complied with the March 2019 Board remand directives. See Stegall, 11 Vet. App. 268 (1998); see also Ledford v. Derwinski 3 Vet. App. 87, 89 (1992). Upon remand, the Veteran was afforded a VA addendum opinion in January 2021. The examiner explained that the Veteran's pes planus was noted on entry into, but opined that it was clearly and unmistakably not aggravated beyond its natural progression by service. While the examiner conceded that temporary aggravation was plausible, permanent aggravation was not found based on a lack of credible medical evidence in service. The examiner again cited a lack of documentation of foot pain in the service treatment records, and while citing the Veteran's contention that he worked on his feet during service, she did not address the Veteran's explicit contention that he suffered increased foot pain in and since service. Instead, the examiner again cited a lack of documented medical treatment soon after separation from service. Again, the Board finds that the opinion relies on the absence of documented treatment in service, and does not address the Veteran's contentions that he suffered increased foot discomfort in service. Therefore, a remand is necessary in order to obtain an addendum opinion which complies with the December 2021 Board remand directives. See Stegall, 11 Vet. App. 268 (1998); see also Ledford, 3 Vet. App. 87, 89 (1992). 3. Entitlement to service connection for skin condition/rash, to include as due to herbicide exposure, is remanded. The Veteran's military personnel records confirm that he served in the Republic of Vietnam as part of the Military Police (MP). The Veteran testified that as part of the 560th MP Company in the Central Highlands of Vietnam, he was responsible for escorting convoys and that he was often under the airplanes that sprayed Agent Orange. The Veteran reported that his skin rashes started as "jungle rot" while he was serving in Vietnam. The Veteran said that the rashes were intermittent and that he did not go to sick call. He self-treated the rashes with cream that the army used for "jungle rot". The Veteran's service treatment records do not reflect complaints of or treatment for skin conditions in service. The Veteran reported that initially, following his separation from service, he frequently had acne type lesions and deeper cysts. The Veteran reported that his first sebaceous cyst developed shortly after he left service, and that he has since had approximately 5 cysts surgically removed from the back of the neck, back and chest. He stated that a few years after leaving the service he sought treatment from Dr. M, a dermatologist, for skin lesions. He reported that he had a basal cell carcinoma removed from the right side of my nose in the late 1970s and had a second basal cell carcinoma removed from his chest. He said that the medical evidence is no longer available because the medical facility did not retain records prior to 2005 for individuals who are no longer patients. The record contains evidence that the Veteran has had recurrent skin conditions, including subcutaneous cysts, actinic keratosis, stucco keratoses, atypical nevus, psoriasiform dermatitis, psoriasis, squamous cell carcinoma, folliculitis, and seborrheic keratoses since his separation from service. He has had hundreds of keratoses frozen off, 6 "blue light" treatments for his scalp and face, and has continued itching, peeling, scaling and sometimes splitting skin in the palms of his hands. The Veteran testified that he sought continuous treatment for skin conditions from Dr. R.B. since 2003. The medical evidence in the record confirms treatment from August 2013 through February 2016. Because the Veteran's service in the Republic of Vietnam is confirmed, his exposure to herbicide agents is conceded. In the March 2019 decision, the Board found that it could not make a fully-informed decision on the issue of service connection for skin condition and rashes without a medical opinion. McLendon, 20 Vet. App. 79. Upon remand, in pertinent part, the Board asked the VA examiner to opine whether the Veteran's skin condition/rash is at least as likely as not related to an in-service injury, event, or disease, including in-service herbicide agent exposure. The Veteran was afforded a new VA examination and opinion in October 2019. The VA examiner found diagnoses of basal cell carcinoma, psoriasis, and actinic keratoses. The VA examiner noted the Veteran was exposed to Agent Orange in service and opined that "it is certainly possible that the Agent Orange exposure enhanced his risk for skin cancer development." No further clarification was given. The Veteran was afforded an additional VA medical opinion in April 2020 by a separate examiner. The April 2020 VA examiner opined that the Veteran's skin conditions were less likely than not "due to or incurred in service in Vietnam and/or exposure to Agent Orange." The examiner explained that there was no evidence in the literature of a cause-and-effect relationship or a susceptibility relationship between Agent Orange exposure, and the Veteran's skin conditions. However, the examiner did not reconcile his opinion with that of the October 2019 examiner's, which suggested some relationship between Agent Orange exposure and the Veteran's current skin disabilities. Therefore, the Board found in its December 2021 remand that it was necessary to obtain an additional addendum opinion which considered the findings of the October 2019 examiner. Upon remand, the Veteran was afforded an addendum opinion in January 2021. The examiner rendered a negative nexus opinion and cited medical literature in support. While the Board finds the opinion to be otherwise adequate, again, the examiner did not address the findings of the October 2019 examiner. Therefore, the Board finds it necessary to obtain an additional addendum opinion which considers the findings of the October 2019 examiner. See Stegall, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's lumbosacral strain and degenerative arthritis of the spine is at least as likely as not proximately due to or aggravated beyond its natural progression by his service-connected osteoarthritis of the knees. This should be expressed as two separate opinions. The relevant documents in the record should be made available to the examiner who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. All findings, conclusions, and opinions must be supported by a clear rationale. 2. Obtain a medical opinion on whether the Veteran's pes planus was clearly and unmistakably not aggravated by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. If the examiner finds that the Veteran's pes planus was clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the rigors of military service, such as basic and advanced training, riding vehicles while standing on the back of ammunition cans, walking on gravel roads, and standing on hard surfaces while working 12-hour shifts as part of the Military Police. The examiner is reminded that the Veteran has testified about experiencing increased foot pain while in service, and the examiner should address these contentions. See August 2018 Board hearing. The relevant documents in the record and a copy of this REMAND should be made available to the examiner who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. All findings, conclusions, and opinions must be supported by a clear rationale. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the etiology of the Veteran's skin condition/rash. The examiner must opine whether the Veteran's skin condition/rash is at least as likely as not related to an in-service injury, event, or disease, including in-service herbicide agent exposure. The relevant documents in the record should be made available to the examiner who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. All findings, conclusions, and opinions must be supported by a clear rationale. If necessary, the examiner must reconcile his or her findings with the October 2019 VA examiner's that it was possible that the Veteran's skin disabilities are related to his Agent Orange exposure in service. (Continued on next page.) 4. If any benefit sought on appeal remains denied, provide an SSOC to the appellant and his representative. The SSOC must contain notice of all relevant actions taken on the appellant's claim, to include a summary of the evidence and applicable law and all versions of regulations considered pertinent to the issues currently on appeal. An appropriate time period for response must be allowed. Thereafter, the claims folder should be returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.