Citation Nr: 21011106 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-28 509A DATE: February 26, 2021 REMANDED 1. Entitlement to service connection for a respiratory disorder, claimed as chronic cough, coughing blood, hard time breathing/swallowing, to include as due to herbicide agent exposure, is remanded. 2. Entitlement to service connection for a skin disability, claimed as a leg rash, to include as due to herbicide agent exposure, is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1965 to September 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The matters were remanded in November 2019 for further development. 1. Entitlement to service connection for a respiratory disorder, claimed as chronic cough, coughing blood, hard time breathing/swallowing, to include as due to herbicide agent exposure, is remanded. The Board remanded this matter to obtain a VA examination. Both the February 2020 and September 2020 VA examiners opined that the Veteran did not have a current respiratory disability. However, during the February 2020 examination the Veteran noted shortness of breath and bronchospasm that precluded him from performing certain activities of daily living, which is demonstrative of functional impairment. As such, a respiratory disability for VA purposes is conceded. Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain resulting in functional impairment constitutes a disability as contemplated in 38 U.S.C. § 1110, even in the absence of a presently-diagnosed condition). On remand, an addendum opinion is necessary to address the etiology of this disability. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Additionally, the September 2020 VA examiner did not adequately address whether vocal cord dysfunction (VCD) and related symptoms are the result of service, requiring an addendum opinion on remand. See Barr, supra. 2. Entitlement to service connection for a skin disability, claimed as a leg rash, to include as due to herbicide agent exposure, is remanded. The February 2020 VA examiner diagnosed the Veteran with hemosiderin staining. She opined that the Veteran’s hemosiderin staining was caused by chronic venous disease and was not linked to herbicide agent exposure. The Board finds this opinion inadequate, as it does not consider the Veteran’s competent lay statements of onset of a rash in service continuing to today. See Dalton v. Nicholson, 21 Vet. App. 23 (2007)(an examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in the service treatment records, and does not account for competent lay testimony as to onset and continuity of symptoms, to provide a negative opinion). Additionally, the examiner did address whether the condition otherwise had its onset in service or was otherwise related to service. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). Moreover, the Board is unclear as to whether or not the hemosiderin staining is the same type of skin disorder as the rash described by the Veteran at the May 2019 Board hearing, in the March 2016 VA treatment record describing a rash, or the March 2019 VA treatment record noting use of medication for itching and rash, particularly when he testified that the rash “comes and goes.” As there may be multiple skin disorders present, clarification is needed on remand. See Barr, supra. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. The Board remanded this matter to obtain a VA examination. The February 2020 VA examiner diagnosed the Veteran with bilateral knee tendonitis/tendinosis and arthritic conditions. The examiner opined that the Veteran’s bilateral knee disability was not related to service. The Board finds this examination inadequate as the examiner did not discuss the Veteran’s statement that he experienced bilateral knee pain with its onset in service and continuing to the present, and solely based her negative opinion on the lack of documentation in the service treatment records pertaining to bilateral knee complaints or treatment. See Dalton, supra. Accordingly, an addendum opinion is needed on remand. See Barr, supra. Any outstanding VA treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Then, obtain an addendum opinion, preferably from a physician, addressing the nature and etiology of the Veteran’s shortness of breath and bronchospasm with functional impairment and Vocal Cord Disorder (VCD). The entire claims file should be made available to the examiner. All findings should be reported in detail. After a review of the claims file, the examiner is requested to address the following: (a.) VA has conceded a current respiratory disability manifested by shortness of breath and bronchospasm based on case law that indicates symptoms causing functional impairment constitute disability for VA purposes. Please do not indicate that there is no current respiratory disability in your opinion, or it will be returned as inadequate. (b.) For (1) respiratory disability manifested by shortness of breath and bronchospasm and (2) diagnosed vocal cord dysfunction (VCD), please as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in service or is otherwise related to service, to include as a result of conceded herbicide agent exposure therein. In addressing this question please discuss the Veteran’s May 2019 Board hearing testimony that: (1) he started having problems with his throat, neck, and talking during active duty while in Vietnam; (2) he specifically testified as to difficulty breathing and “hard” coughing during active duty; and (3) his symptoms of difficulty breathing and coughing had their onset in service while in Vietnam and has continued until the present time. In addressing this question, the examiner must assume items (b)(1) - (b)(3) as true, even despite the absence of “objective documentation.” (c.) Please state whether a nexus between respiratory disabilities noted above and service is medically consistent with the symptomatology reported by the Veteran in items (b)(1) and (b)(3) above. Please furnish a robust rationale for all opinions and conclusions expressed, and please do not rely solely on the fact that a given disability is not eligible for presumptive service connection, as doing so will render the opinion inadequate. If unable to provide an opinion, please indicate whether there is any additional evidence that would enable you to do so, or whether the inability to opine is based on the limits of medical knowledge. 3. Obtain an addendum opinion from an examiner other than the February 2020 examiner, preferably a dermatologist, addressing the nature and etiology of any skin conditions. No additional examination is necessary, unless the examiner determines otherwise. The entire claims file should be made available to the examiner. All findings should be reported in detail. After a review of the claims file, the examiner is requested to address the following: (a.) Please indicate whether diagnosed hemosiderin staining is consistent with the rash reported by the Veteran during March 2016 (describing a rash) and March 2019 VA treatment (record noting use of medication for itching and rash), as well as his Board hearing (a rash that comes and goes, when present occurs from the knees to ankles, bleeds if scratched and treated with ointment). If not, please identify the nature of the Veteran’s rash that is distinct from his hemosiderin staining. (b.) For each disability so diagnosed, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in service or is otherwise related to service, to include as a result of conceded herbicide agent exposure therein. In addressing this question please discuss and concede the Veteran’s May 2019 Board hearing testimony that: (1) he first noticed a rash during active duty the day after he returned to the United States from Vietnam and the rash has continued to the present; and (2) certain environmental factors will cause the rash to be worse. In addressing this question, the examiner must assume items (b)(1) - (b)(2) as true, even despite the absence of “objective documentation.” (c.) Please state whether the Veteran’s a nexus between the Veteran’s skin disabilities and service is medically consistent with the symptomatology reported by the Veteran in items (b)(1) and (b)(2) above. Please furnish a robust rationale for all opinions and conclusions expressed, and please do not rely solely on the fact that a given disability is not eligible for presumptive service connection, as doing so will render the opinion inadequate. If unable to provide an opinion, please indicate whether there is any additional evidence that would enable you to do so, or whether the inability to opine is based on the limits of medical knowledge. 4. Obtain an addendum opinion from an examiner other than the February 2020 examiner, preferably a physician, addressing the nature and etiology of any right knee or left knee conditions. No additional examination is necessary, unless the examiner determines otherwise. The entire claims file should be made available to the examiner. All findings should be reported in detail. After a review of the claims file, the examiner is requested to address the following: For diagnosed bilateral knee arthritis and tendonitis/tendinosis, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in service or is otherwise related to service. In addressing this question please discuss the Veteran’s May 2019 Board hearing testimony that: (1) his bilateral knee pain had its onset during active service and has continued to the present; (2) his military occupational specialty (MOS) of truck driver and its cumulative impact of continuously having to jump out of the truck to reach the ground; (3) his conceded but undocumented in-service bilateral knee injury sustained when he hit both knees on a truck bumper from which he took approximately one month to recover; (4) his brother and sisters’ reports that the Veteran returned from Vietnam limping from a knee injury. In addressing this question, the examiner must assume items (b)(1) - (b)(4) as true, even despite the absence of “objective documentation.” (b.) Please state whether a nexus between the Veteran’s right or left knee disabilities and service is medically consistent with the symptomatology reported by the Veteran in items (b)(1) and (b)(4) above. (c.) For any diagnosed arthritis, is it at least as likely as not that this condition manifested within a year of a qualifying period of active service, or by September 1968? Please note, the Veteran’s statements may not be discounted solely on the lack of confirmation in the medical records. Please be advised any negative opinion premised solely on an absence of treatment will be returned as inadequate. If the Veteran’s reported history is discounted, the examiner must provide a reason for doing so. A robust rationale is requested for any opinion furnished. If unable to provide an opinion, please indicate whether there is any additional evidence that would enable you to do so, or whether the inability to opine is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.