Citation Nr: 21070103 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-62 478 DATE: November 23, 2021 ORDER Service connection for a rash on the hands is granted. Service connection for an upper back disability is granted. VETERAN'S CONTENTIONS The Veteran contends that he has a hand rash as a result of in-service exposure to herbicide agents, including Agent Orange. The Veteran contends that he has an upper back disability as a result of an in-service incident in which he was thrown from his bunk when an incoming rocket hit a tree approximately 6 feet away from his living area. FINDINGS OF FACT 1. The Veteran's hand rash is related to his active service. 2. The Veteran's upper back disability is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a hand rash are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for an upper back disability are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Montgomery, Alabama. Jurisdiction is currently with the RO in Phoenix, Arizona. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2020 and a transcript of the hearing has been associated with the claims file. These matters were previously before the Board in March 2020, at which time they were remanded for further development. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Additionally, a veteran who, during active service, served in the Republic of Vietnam (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 C.F.R. § 3.307 (a)(6)(iii). If a veteran is presumed to have been exposed to an herbicide during such active service, the veteran shall be service connected for the diseases listed under 38 C.F.R. § 3.309 (e) if the disability manifested to a degree of 10 percent or more at any time after active service. See 38 C.F.R. § 3.307(a)(6)(ii). Where presumptive service connection is not warranted because the claimed disability is not listed under 38 C.F.R. § 3.309(e), the Board must consider whether there is competent evidence that shows that the claimed condition was actually caused by the Veteran's active service, including herbicide exposure. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Combee v. Brown, 34 F.3d 1039, 1042 (1994). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 1. Entitlement to service connection for a hand rash At the outset, the Board finds that although the Veteran served in Vietnam during the Vietnam era, service connection for hand rash is not warranted on a presumptive basis as due to herbicide exposure, including Agent Orange, because the herbicide presumption set forth in 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 does not apply. The Veteran's hand rash is not an enumerated disability that is presumed due to herbicide exposure listed under 38 C.F.R. § 3.309(e). There is no indication that the Veteran's hand rash has been diagnosed as chloracne or other acneform disease consistent with chloracne, which is an enumerated disability that is presumed due to herbicide exposure listed under 38 C.F.R. § 3.309(e). Turning to the issue of direct causation, in addressing the criterion of a current diagnosis, the evidence of record includes a June 2021 Skin Conditions Examination Report in which the examiner diagnosed the Veteran with contact dermatitis. In addressing in-service incurrence, the Board notes that the Veteran's service treatment records (STRs) have been determined to be missing, and in such instances, VA has a heightened duty to resolve doubt in favor of the Veteran. As indicated above, the Veteran contends that he has a hand rash as a result of in-service exposure to herbicides, including Agent Orange. The Veteran testified during the January 2020 Board hearing that he can think of no other reason aside from herbicide exposure to account for his hand rash. The Veteran's military personnel records confirm his service in Vietnam and therefore his herbicide exposure is presumed. In addressing nexus, Dr. T.W.B. opined that the Veteran's rashes on his hands were more likely than not directly related to Agent Orange exposure. Dr. T.W.B. reasoned that the Veteran has continued to experience intermittent skin rashes on his hands. A June 2021 VA examiner opined that it is likely that the Veteran's skin condition started in service. The examiner reasoned that the Veteran served in the Agent Orange era and therefore it is likely he was exposed and experiences intermittent dermatitis. The examiner further reasoned that the Veteran reported a rash on his bilateral hands and arms intermittently and he reported experiencing itching on his bilateral hands that would not go away in 1969. The Board finds both Dr. T.W.B.'s and the June 2021 VA examiner's opinions of significant probative value, as they were based on the Veteran's medical history and/or consistent treatment of the Veteran's condition. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges that the June 2021 VA examiner also opined that that the claimed skin condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, based on the above evidence, and resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise with respect to the issue of entitlement to service connection for a hand rash, therefore, the Board grants the Veteran's claim. 38 U.S.C. §§ 1110, 1131, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for an upper back disability In addressing the criterion of a current diagnosis, the evidence of record includes a June 2021 Neck (Cervical Spine) Examination Report in which the examiner diagnosed the Veteran with cervical strain. In addressing in-service incurrence, the Board again notes that the Veteran's STRs have been determined to be missing, and in such instances, VA has a heightened duty to resolve doubt in favor of the Veteran. The Veteran testified during the January 2020 Board hearing that he was stationed in Vietnam at Phuoc Vinh, a location that was constantly being shelled by enemy rockets and mortars. One night while sleeping, an incoming rocket hit a tree approximately 6 feet away from his living area and threw him out of his bunk. Quickly after the incident, he developed neck pain which has persisted to the present. The Board notes that the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran's account of the rocket attack to be credible and consistent with the circumstances of his service. The Veteran submitted a buddy statement from a fellow service member in support of his testimony. In addressing nexus, Dr. T.W.B. opined that the Veteran's chronic upper back pain (associated with numbness and intermittent tingling) was more likely than not directly related to his military service in Vietnam. Dr. T.W.B. reasoned that the Veteran had no other known risk factors that would have precipitated the condition. Dr. T.W.B. further reasoned that the Veteran first experienced his upper back pain while deployed in combat in Vietnam after he was hurled into the air when a rocket entered his sleep quarters; and he continued to experience upper back pain ever since, self-medicating with ibuprofen 800 mg tablets without significant relief. A June 2021 VA examiner opined that it is likely that the Veteran's upper back disability started in service. The examiner reasoned that the Veteran reported sustaining an injury when he was knocked from his bunk secondary to a blast. The examiner further reasoned that the Veteran has a history of chronic upper back pain associated with numbness and intermittent tingling and an injury to include being knocked from a bunk and falling is likely to cause back pain. The Board finds both Dr. T.W.B.'s and the June 2021 VA examiner's opinions of significant probative value, as they were based on the Veteran's medical history and/or consistent treatment of the Veteran's condition. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges that the June 2021 VA examiner also opined that that the claimed upper back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, based on the above evidence, and resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise with respect to the issue of entitlement to service connection for upper back disability, therefore, the Board grants the Veteran's claim. 38 U.S.C. §§ 1110, 1131, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.