Citation Nr: 21012902 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 11-15 826 DATE: March 5, 2021 ORDER 1. The June 2020 Board decision denying service connection for right wrist, left wrist, right fingers, left fingers, left buttocks, left thigh, and left foot arthritis and remanding service connection for degenerative disc disease (DDD) of the spine is vacated. 2. Service connection for DDD of the spine is denied. 3. Service connection for right wrist arthritis is denied. 4. Service connection for left forearm arthritis is denied. 5. Service connection for right finger arthritis is denied. 6. Service connection for left finger arthritis is denied. 7. Service connection for left thigh arthritis is denied. 8. Service connection for left buttock arthritis is denied. 9. Service connection for left foot arthritis is denied.   FINDINGS OF FACT 1. The June 2020 Board decision denying service connection for right wrist, left wrist, right fingers, left fingers, left buttocks, left thigh, and left foot arthritis and remanding DDD of the spine was issued by a Veterans Law Judge (VLJ) that did not conduct the Veteran’s Board hearing. 2. The Veteran’s DDD of the spine and arthritis of the right wrist, left forearm, right fingers, left fingers, left thigh, left buttock, and left foot are not related to any disease, injury, or incident during service, did not have their onset within one year of discharge, and are not caused or aggravated by photodermatitis. CONCLUSIONS OF LAW 1. Vacatur of the June 2020 Board decision denying service connection for right wrist, left wrist, right fingers, left fingers, left buttocks, left thigh, and left foot arthritis and remanding DDD of the spine is warranted. 38 U.S.C. §§ 7102, 7104; 38 C.F.R. §§ 20.604, 20.1000. 2. The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for a right wrist disorder are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for a left forearm disorder are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for a right finger disorder are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for a left finger disorder are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The criteria for service connection for a left thigh disorder are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 8. The criteria for service connection for a left buttock disorder are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 9. The criteria for service connection for a left foot disorder are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to April 1983. The case is on appeal from a September 2009 rating decision. In July 2013, the Veteran testified at a Board hearing before the undersigned VLJ. In a January 2019 decision, the Board denied service connection for DDD of the spine and arthritis of the right wrist, left forearm, right fingers, left fingers, left thigh, left buttock, and left foot. The Veteran appealed the decision to the United States Court of Appeal for Veterans Claims (Court) and, in December 2019, the parties to this appeal entered into a Joint Motion for Remand (Joint Motion), in which the parties agreed that the Board’s decision should be vacated. The Court granted the Joint Motion in an Order issued later in December 2019. Thereafter, in a June 2020 decision vacated herein, the Board again denied the service connection claims except for the spine claim that was remanded for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Vacatur 1. Validity of the June 2020 Board denying service connection for right wrist, left wrist, right fingers, left fingers, left buttocks, left thigh, and left foot arthritis and remanding DDD of the spine. The Board may vacate an appellate decision at any time upon request of the Veteran or on the Board’s own motion. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. For Legacy appeals, claims addressed in a Board hearing are to be decided by the VLJ that presided at the hearing. 38 U.S.C. § 7102; 38 C.F.R. § 20.604. In June 2020, a VLJ who did not preside over the July 2013 Board hearing addressing service connection for right wrist, left forearm, right fingers, left fingers, left buttocks, left thigh, and left foot arthritis issued a decision denying such claims. Therefore, the Board finds it is necessary to vacate the June 2020 decision. 38 U.S.C. §§ 7102, 7104; 38 C.F.R. §§ 20.604, 20.1000. II. Service Connection 2. Service connection for a back disorder. 3. Service connection for a right wrist disorder is denied. 4. Service connection for a left forearm disorder is denied. 5. Service connection for a right finger disorder is denied. 6. Service connection for a left finger disorder is denied. 7. Service connection for a left thigh disorder is denied. 8. Service connection for left buttock disorder is denied. 9. Service connection for a left foot disorder. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, including arthritis, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Furthermore, service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran is claiming service connection for back, right wrist, left forearm, right finger, left finger, left thigh, left buttock, and left foot disorders related to service or secondary to lupus or a service-connected skin condition. In a July 1992 statement, she reported being in two motor vehicle accidents (MVAs) resulting in whiplash and experiencing back problems. She also reported her back problem worsened since discharge and being treated for her back in 1990. In January 2009, the Veteran submitted a September 2008 treatment record and letter from a private physician. The treatment record notes an impression of mild cutaneous lupus and mild Reynaud’s phenomenon. The physician stated that the Veteran’s blood tests are mildly positive for lupus, she is unable to touch anything cold, and needs to wear gloves to get items from the refrigerator. He concluded that the Veteran has low back, right wrist, bilateral finger, and left forearm, thigh, buttock and foot arthritis 50 percent or more likely related to lupus. In July 2013, the Veteran submitted internet articles regarding lupus. During the July 2013 Board hearing, she claimed that her service-connected photodermatitis is a misdiagnosis of lupus, or a symptom of lupus, and that it causes arthritis in the claimed joints and body parts. The Veteran’s service treatment records (STRs) include reports of low back pain in November 1979, which was noted as coinciding with her period, and in July 1982, which was noted as coinciding with pregnancy. The STRs do not indicate an MVA or include treatment related to an MVA. The STRs also do not include reports of or treatment for wrist, finger, or left forearm, thigh, buttock or foot symptoms. The Veteran’s post-service private treatment records show that, in March 1990, she was treated for low back pain radiating into her left leg that began in July 1989. In October 1992, she was treated for low back pain related to dancing and lasting 4 days. The treatment provider noted the pain was recurring monthly for the last 2 to 3 years. During a November 2008 VA skin examination, the examiner found that the Veteran’s private rheumatologist’s diagnosis of mild cutaneous lupus seemed reasonable. However, a September 2009 skin examiner explained that the lupus diagnosis is improper because a review of her treatment records included a 2008 skin biopsy that was negative for lupus and a confirmatory blood test does not support a lupus diagnosis. The examiner also explained that all testing done in 2008 to determine if the Veteran has lupus were negative. The examiner instead explained that a 2005 skin biopsy showed that the Veteran has chronic photodermatitis which began during service. In December 2014, the Veteran was afforded a VA examination in regard to the claims on appeal. The Veteran reported experiencing photosensitivity during service. She also reported being diagnosed with fibromyalgia in 2009 or 2010 by a VA physician. The examiner instead diagnosed the Veteran with DDD of the lumbar spine as well as wrist, finger, hip, and left foot degenerative arthritis. The examiner reported that the Veteran does not have lupus, noting that both a skin biopsy and a complete panel for lupus in 2008 were negative. The examiner also reported that the findings did not correlate with arthritic changes associated with cutaneous lupus or photosensitivity and that there is no indication that the photosensitivity aggravates the Veteran’s arthritis in the relevant areas. The examiner further reported that the Veteran’s mild to minimal arthritis of the spine and other areas was diagnosed in approximately 2012, many years after separation, and is consistent with her age and occupational history, not her military service. The examiner noted that the January 2009 letter from the Veteran’s private dermatologist noted blood tests were mildly positive for lupus and that it was at least as likely as not that arthritis in multiple areas was related to lupus. However, the examiner explained that private dermatologist did not provide biopsy pathology report, x-ray results, or other documentation in support of the opinion. In October 2016, the Board obtained an expert medical opinion from the Veterans Health Administration (VHA), which was obtained from a rheumatologist at a VA medical center. The rheumatologist found that the Veteran does not have lupus and that a diagnosis of photodermatitis is much more likely. He explained that the Veteran’s treatment records show a clinical diagnosis of photodermatitis/solar urticaria based on a biopsy indicating superficial perivascular dermatitis, which included a differential diagnosis of photodermatitis, drug eruption, and possibly an early lesion of pityriasis lichenoides. He also explained that the private physician’s notes were reviewed and found to show a skin biopsy negative for cutaneous lupus based on immunofluorescence studies and that confirmatory lab tests for systemic lupus in September 2008 were negative, despite a screening test that was mildly positive. The rheumatologist noted that other laboratory studies did not show any evidence of lupus and that Raynaud’s phenomenon is very common in women and most of the time is not due to an autoimmune disease. He also noted that the Veteran’s medical records show that the claimed conditions are due to degenerative arthritis corroborated by radiologic studies. The rheumatologist explained that degenerative arthritis is due to wear and tear of the joints and is worsened or aggravated by activity, which occurred in the Veteran’s case. He concluded that it is highly unlikely that the Veteran’s has lupus and that her arthritis is not related to or aggravated by a skin condition. He also concluded that her arthritis is not related to service. As noted above, the Board denied service connection for DDD of the spine and arthritis of the right wrist, left forearm, right fingers, left fingers, left thigh, left buttock, and left foot in a January 2019 decision. In a December 2019 Joint Motion, the parties found that the Board did not adequately address the issue of direct service connection for the claimed conditions. Thereafter, in October 2020, a VA addendum opinion was obtained in regard to the Veteran’s back claim. The examiner reported a diagnosis of lumbar spine DDD. She reported that, while the Veteran reported experiencing back pain during service, there was no condition diagnosed and no documented chronicity. She also reported that the Veteran’s current back condition was documented in a 2005 x-ray, which was 20 years after discharge. The examiner noted that the Veteran reported back pain for 4 days following dancing during private treatment in October 1992. The examiner concluded that it is less likely than not that the Veteran’s back disorder was incurred in or caused by service. She explained that the Veteran has a degenerative condition that occurs primarily with aging. The Board finds that the Veteran does not have a back, right wrist or finger, or left forearm, finger, thigh, buttock or foot disorder that is related to any disease, injury, or incident during service, that had its onset within one year of discharge, or that is caused or aggravated by photodermatitis. In this regard, the December 2014 and October 2020 VA examiners’ and VA rheumatologist’s opinions are clear and unequivocal and are based on the relevant information, including the Veteran’s statements, STRs, post-service records, and relevant medical research. Moreover, their explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiners explained that the Veteran has not been properly diagnosed with lupus and that the claimed disorders are not caused or aggravated by photodermatitis. In addition, the examiners explained that the claimed conditions are properly diagnosed as degenerative arthritis caused by wear and tear of the joints and worsened or aggravated by activity and are not related to service because they were mild in severity many years after discharge. These findings are supported by the Veteran’s post-service private treatment records showing treatment for recurrent back pain with reported onset several years after discharge. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that statements made to physicians for the purposes of diagnosis and treatment are trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Therefore, the examiners’ findings that it is less likely than not that the claimed conditions are related to service, had their onset within one year of discharge, or are caused or aggravated by photodermatitis is highly persuasive and probative evidence. While the Veteran believes that these disorders are related to service or caused or aggravated by a photodermatitis, these are a complex medical questions outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. As a lay person, the Veteran has not established the competence needed to rebut the expert medical opinions of record. As such, the Veteran’s opinions are not adequate to rebut the examiners’ opinions as to the etiology of the claimed conditions, nor are they otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between service or photodermatitis and the claimed disorders. Additionally, the Board acknowledges that the Veteran submitted several medical journal articles to support her contention that she has arthritis or joint pain secondary to lupus. The most probative evidence, however, does not establish that the Veteran has had lupus during the appeal period or that the claimed conditions are caused or aggravated by her service-connected skin disability, however diagnosed. In addition, the articles do not address the specific facts of the Veteran’s case. (Continued on the next page)   The Board notes an April 2012 Social Security Administration (SSA) determination and associated records reporting lupus with photosensitivity. However, the primary diagnosis listed in the June 2011 SSA determination is dermatitis. In addition, the SSA records do not reflect a nexus between arthritis and service or the service-connected skin disability and the SSA decision does not include any objective findings to support opinions attributing the Veteran’s joint pain to fibromyalgia. Furthermore, the Board is not bound by determinations of the SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Accordingly, the preponderance of the evidence shows that the Veteran’s DDD of the spine and arthritis of the right wrist, left forearm, right fingers, left fingers, left thigh, left buttock, and left foot are not related to any disease, injury, or incident during service, did not have their onset within one year of discharge, and are not caused or aggravated by photodermatitis. Therefore, the benefit-of-the-doubt doctrine is not applicable, and service connection for any of the claimed conditions is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.