Citation Nr: 21076143 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-53 743 DATE: December 22, 2021 REMANDED Entitlement to service connection for lumbar spine degenerative arthritis is remanded. Entitlement to service connection for bilateral wrist osteoarthritis is remanded. Entitlement to service connection for bilateral knee osteoarthritis is remanded. Entitlement to service connection for a colon condition is remanded. Entitlement to service connection for skin cancer is remanded. REASONS FOR REMAND The Veteran had active service from May 1969 to February 1971. He appealed a May 2014 rating decision by the Agency of Original Jurisdiction (AOJ). These matters were remanded by the Board for additional development in May 2019. However, for the reasons discussed below, another remand is required. The AOJ adjudicated the Veteran's claim for service connection for arthritis as a single issue in the May 2014 rating decision. However, the Veteran seeks compensation for arthritis of the back, knees, and wrists, and the record suggests the factual basis of these claims may be distinct. Thus, the Board has recharacterized the original claim into separate issues as indicated above. Preliminarily, the Board observes there are outstanding records. The April 2020 Supplemental Statement of the Case indicated that VA medical records for the period from November 2011 through February 2020 were among the evidence considered by the AOJ. However, the latest VA medical records associated with the claims file were added in September 2017. Additionally, the examination reports obtained on remand all indicated that records from the Computerized Patient Record System (CPRS) were reviewed in addition to the Veteran's claims file. However, the Board does not have access to CPRS. Moreover, the May 2019 remand directed the AOJ to obtain outstanding private treatment records related to the Veteran's claimed colon condition. On remand, the AOJ requested and received additional treatment records. See December 2019 records from Dr. K.K. The coversheet for the records received from Dr. K.K. included a note asking that the Veteran call the physician's office as he was due for a colonoscopy. As this record suggests the Veteran may have received additional treatment following the receipt of these records, the Veteran should be asked to identify and authorize the release of any outstanding, pertinent private treatment records. On remand, the AOJ should obtain outstanding VA treatment records, to include from September 2017 forward, as any outstanding relevant records viewable in CPRS, and any outstanding private treatment records identified by the Veteran. 1. Arthritis The Veteran seeks service connection for arthritis of the back, wrists, and knees. See December 2014 Notice of Disagreement (NOD) and October 2017 VA Form 9. In May 2019, the Board instructed the AOJ to afford the Veteran an examination to determine the etiology of any diagnosed arthritis of the back, knees, and wrists. See May 2019 Board remand at pp. 4-5. The AOJ afforded the Veteran back, knee, and wrist examinations in December 2019. With respect to the Veteran's back, the examiner rendered a negative opinion, relying in part on a finding that the Veteran's separation examination was normal with no noted chronic back disability. However, a December 1970 service treatment record (STR) noted the Veteran reported a 13-month history of low back pain and was diagnosed with chronic back strain. This record conflicts with the examiner's finding that the Veteran did not have a chronic back condition during service. Accordingly, a new opinion is required to reconcile this discrepancy. A new opinion is also required to address a threshold question regarding the Veteran's claimed back disability. The Veteran's May 1969 entrance examination report indicated his spine was clinically normal. However, the accompanying report of medical history noted the Veteran's endorsement of back trouble, and an annotation that he had back strain from lifting. Thus, the question of preexistence has been raised. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As the Veteran's spine was found to be clinically normal, the presumption of soundness attaches. However, clarification is required to determine whether the Veteran's back disability clearly and unmistakably preexisted service and, if so, whether the preexisting back disability was clearly and unmistakably not aggravated by the Veteran's military service. Finally, the Veteran contends that his arthritis is due to herbicide exposure. See December 2014 NOD and August 2018 Appellate Brief. However, the December 2019 examination reports did not consider this theory of entitlement. On remand, the clinician should also address whether the Veteran's arthritis of the back, knees, and wrists was caused by the Veteran's presumed herbicide exposure during service. 2. Colon Condition The Veteran seeks service connection for a colon condition. See March 2014 VA Form 21-526. He asserts his colon polyps resulted from herbicide exposure because of his service in Vietnam. See December 2014 NOD and August 2018 Appellate Brief. VA has not provided the Veteran with an examination in connection with this claim. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the record reflects a diagnosis of colon polyps. See February 2015 VA colonoscopy results. The Veteran had service in the Republic of Vietnam, is presumed to have been exposed to herbicide agents, and asserts that the colon polyps are due to such exposure. Given these facts, the Veteran should be afforded an examination regarding his claimed colon condition. 3. Skin Cancer The Veteran seeks service connection for skin cancer. See March 2014 VA Form 21-526EZ. He asserts his condition is due to herbicide exposure because of his service in Vietnam. See December 2014 NOD and October 2017 VA Form 9. Alternatively, the Veteran contends his skin condition is due to direct sun exposure in service. See August 2018 and May 2019 Appellate Briefs. The May 2019 remand directed the AOJ to provide the Veteran a skin examination to determine the relationship between the Veteran's claimed condition and service. The examiner diagnosed the Veteran with squamous cell carcinoma of the left anterior leg and noted it was in remission. The examiner opined that the condition was less likely than not related to herbicide exposure in service. However, the examiner's rationale did not address herbicide exposure, but rather stated that the Veteran admitted to "lots of sun exposure," and had multiple risk factors including ultraviolet (UV) light exposure, aging, and genetics. Additional clarification is required. First, the Veteran's primary theory of entitlement was that his skin cancer was due to herbicide exposure; however, the examiner's rationale did not address herbicide exposure. Second, the examiner attributed the Veteran's cancer to UV light exposure and stated that the Veteran's records showed he admitted to "lots of sun exposure." The examination report does not provide any detail as to the Veteran's reports of sun exposure or identify the source of such reports. The Board's review of the claims file indicates that the assertions of sun exposure are contained in the August 2018 and May 2019 Appellate Briefs, in which the Veteran alleged sun exposure during service. Consequently, it is unclear whether the examiner is attributing the Veteran's skin cancer to in-service sun exposure. Given these issues, a new opinion is required to reconcile these discrepancies and fully address the theories of entitlement raised by the Veteran. The matters are REMANDED for the following actions: 1. Obtain and associate with the record outstanding VA treatment records, to include records from September 2017 forward, as well as any outstanding relevant records viewable in CPRS. Additionally, take steps to obtain any outstanding private treatment records, to include from Dr. K.K. 2. After any outstanding records have been received, refer the claims file to an appropriately qualified clinician for preparation of a medical opinion regarding the Veteran's arthritis claims. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. After reviewing the record, the clinician is asked to respond to the following: (a.) Did the Veteran's back disability clearly and unmistakably (obviously or manifestly) preexist his entry into active service? (b.) If so, is it also clear and unmistakable (obvious, manifest, and undebatable) that the back disability WAS NOT aggravated (not permanently worsened beyond the natural progression) during active service? (c.) If there is no clear and unmistakable evidence that the Veteran's back disability existed prior to service, is it at least as likely as not that the back disability was incurred in or otherwise related to service, to include the Veteran's treatment for chronic lumbar strain in December 1970 and / or the Veteran's presumed herbicide exposure? (d.) For the Veteran's bilateral knee and wrist arthritis, is it at least as likely as not that the disabilities were incurred in or otherwise related to service, to include the Veteran's presumed herbicide exposure? In rendering any opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 3. After any outstanding records have been received, schedule the Veteran for an examination to determine the nature and etiology of his claimed colon condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should identify any colon disabilities present. For each disability identified, the examiner should opine whether it is at least as likely as not that the disability had its onset during service or is otherwise related to service, to include herbicide exposure. In rendering any opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 4. After any outstanding records have been received, refer the claims file to an appropriately qualified clinician for preparation of a medical opinion regarding the Veteran's skin cancer claim. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. The reviewing clinician is asked to opine whether it is at least as likely as not that the Veteran's squamous cell carcinoma had its onset during service or is otherwise related to service, to include due to herbicide exposure and / or in-service sun exposure. In rendering any opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) 5. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.