Citation Nr: 21019933 Decision Date: 04/06/21 Archive Date: 04/06/21 DOCKET NO. 13-34 851 DATE: April 6, 2021 ORDER Service connection for nephrolithiasis and chronic kidney disease (kidney disorder), as secondary to the service-connected degenerative joint and disc disease of the lumbar spine (lumbar spine disability), is granted. Service connection for lichen simplex chronicus with pruritus/xerosis, including as due to herbicide exposure, is denied. REMANDED Service connection for hypertension, including as due to herbicide exposure, is remanded. Service connection for eczema, including as due to herbicide exposure, is remanded. Service connection for seborrheic dermatitis, including as due to herbicide exposure, is remanded. Service connection for psoriasis, including as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with nephrolithiasis and chronic kidney disease; the current nephrolithiasis and chronic kidney disease are the result of medication taken to treat the service-connected lumbar spine disability. 2. The Veteran served in the offshore waters of the Republic of Vietnam during the Vietnam War Era, so is presumed to have been exposed to herbicide agents during service, including Agent Orange. 3. The Veteran is currently diagnosed with lichen simplex chronicus with pruritus/xerosis; the current lichen simplex chronicus with pruritus/xerosis did not have its onset during service, and is not otherwise etiologically related to service, including to the exposure to herbicides during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for nephrolithiasis and chronic kidney disease, as secondary to the service-connected lumbar spine disability, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for lichen simplex chronicus with pruritus/xerosis have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from October 1967 to October 1969. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is currently diagnosed with nephrolithiasis and chronic kidney disease (as nephritis), which are “chronic” diseases under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as nephritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. While specific diseases are deemed associated with herbicide exposure under VA regulation, chronic kidney disease and lichen simplex chronicus with pruritus/xerosis are not diseases for which presumptive service connection based on exposure to herbicides may be granted. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). 1. Service connection for a kidney disorder The Veteran generally seeks service connection for a kidney disorder as secondary to the service-connected lumbar spine disability; alternatively, the Veteran asserts a kidney disorder is the result of exposure to herbicides during service. See January 2021 Board hearing transcript. At the outset, the Board finds the Veteran is currently diagnosed with a kidney disorder. A March 2010 VA examination report shows the Veteran was diagnosed with nephrolithiasis and chronic kidney disease. After a review of all the lay and medical evidence, the Board finds that the evidence is at least in equipoise on the question of whether the current kidney disorder is the result of the service-connected lumbar spine disability. The Veteran underwent a VA examination in March 2010, the examination report for which shows the VA examiner’s opinion that the Veteran’s kidney disorder is less likely than not etiologically related to active service, including to herbicide exposure during service, as any herbicide exposure was very remote and the Veteran has other more probable risk factors attributable to the current kidney disorder. Specifically, the March 2010 VA examiner explained that the current kidney disorder is the result of either chronic hypertension or chronic non-steroidal anti-inflammatory drug (NSAID) use due to a history of chronic low back pain caused by the service-connected lumbar spine disability. The VA examiner further explained that both hypertension and NSAID use are medically known causes of chronic kidney disease. The record does not contain any other competent medical opinion attributing the current kidney disorder to other causes other than hypertension and NSAID use. Based on the foregoing evidence, and resolving equipoise in favor of the Veteran, the Board finds that the current nephrolithiasis and chronic kidney disease are caused by the service-connected lumbar spine disability, and that service connection for a kidney disorder as secondary to the service-connected lumbar spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. Because the Board is granting service connection on a secondary basis, all other theories of entitlement to service connection are rendered moot. 2. Service connection for lichen simplex chronicus with pruritus/xerosis The Veteran generally seeks service connection for lichen simplex chronicus with pruritus/xerosis, including as due to exposure to herbicides during service. See March 2010 claim. Initially, the Board finds the Veteran is currently diagnosed with lichen simplex chronicus with pruritus/xerosis. See March 2010 VA examination report. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the current lichen simplex chronicus with pruritus/xerosis did not have its onset during service and is not otherwise etiologically related to service. Service treatment records do not reflect any complaints, symptoms, treatments, or diagnoses for lichen simplex chronicus with pruritus/xerosis or any other skin disorder. An October 1969 service separation examination report shows the Veteran’s skin was found to be clinically normal. Post-service VA treatment records do not show evidence of lichen simplex chronicus with pruritus/xerosis until 2006, in a June 2006 VA treatment record showing an assessment of lichen simplex chronicus superimposed on severe xeratosis. Additionally, the Veteran testified during a June 2018 Board hearing that the skin problems began approximately five years after service separation, and during a January 2021 Board hearing, the Veteran testified that skin problems began approximately 20 to 30 years prior. In the June 2006 VA treatment record discussed above, the Veteran reported a long history of itching on the lower extremities for approximately 20 to 30 years. Although the Veteran’s reports of when his skin symptoms began has varied, the Veteran has consistently reported and testified to the onset of skin symptoms following separation from service. The Veteran was provided with a VA examination in March 2020, the examination report for which shows the Veteran was diagnosed with lichen simplex chronicus and severe xerosis. The March 2020 VA examination report includes the VA examiner’s opinion that it is less likely than not that the current lichen simplex chronicus with pruritus/xerosis had its onset during service or is otherwise etiologically related to active service, including to any herbicide exposure during service. The VA examiner explained that lichen simplex chronicus is a localized area of thickened skin resulting from repeated rubbing, itching, or scratching of the skin, which causes scaling and thickening of the skin. Lichen simplex chronicus is not a primary process, but occurs when a person senses itching in a specific area and causes mechanical trauma to the point of thickening with scaling of the skin. The VA examiner explained that the Veteran also has severe xerosis, which is severe dryness of the skin, which can be caused by hot dry climates, frequent washing, inadequate hydration, or jobs that are physically rough on the skin such as being a mechanic or farmer. The exact etiology of xerosis is unknown, although the VA examiner noted that living in climates such as Arizona, would be a risk factor. Finally, the VA examiner explained that any potential conditions experienced during service, including herbicide exposure, would have long resolved and would not likely cause permanent dry skin approximately 50 years later. Based on the foregoing evidence, the Board finds that the preponderance of the lay and medical evidence is against finding that the current lichen simplex chronicus with pruritus/xerosis is causally related to service, including to herbicide exposure during service. The weight of the evidence demonstrates the current lichen simplex chronicus with pruritus/xerosis had its onset after service and that the Veteran was not diagnosed with lichen simplex chronicus with pruritus/xerosis until June 2006. The evidence of record does not contain a competent medical opinion establishing a medical nexus between the current lichen simplex chronicus with pruritus/xerosis and an injury, disease, or event during service, including as due to herbicide exposure. For these reasons, the Board finds that the weight of the evidence is against service connection for lichen simplex chronicus with pruritus/xerosis, including as due to herbicide exposure, and the claim must be denied. REASONS FOR REMAND 3. Service connection for hypertension is remanded. The Veteran asserts service connection for hypertension is warranted as the result of exposure to herbicide agents while serving in the Republic of Vietnam. A review of the record reveals that the Veteran has not been provided with a VA examination, nor has an adequate VA medical opinion been obtained, even though exposure to herbicides during service has been recognized. Alternatively, the Veteran contends that hypertension is secondary to (38 C.F.R. § 3.310) the service-connected diabetes mellitus, that is, is caused or worsened by, the service-connected diabetes mellitus. See January 20201 Board hearing transcript. However, the record does not contain a competent medical opinion as to whether the current hypertension was caused or worsened by the service-connected diabetes mellitus. Accordingly, remand for VA examinations and opinions is needed. 4. Service connection for eczema is remanded. 5. Service connection for seborrhea dermatitis is remanded. 6. Service connection for psoriasis is remanded. The Veteran generally contends that a variety of skin disorders including eczema, seborrheic dermatitis, and psoriasis are the result of herbicide exposure during service. See March 2010 claim. Although the Veteran was provided with a VA examination for skin disorders in March 2020, the March 2020 VA examiner did not provide a nexus opinion as to whether the claimed skin disorders including eczema, seborrheic dermatitis, and psoriasis are the result of active service, including as due to herbicide exposure. The VA examiner did not offer such nexus opinions because eczema, seborrheic dermatitis, and psoriasis were not observed on the day of the March 2020 VA examination; however, the medical evidence of record reflects current diagnoses of eczema, seborrheic dermatitis, and psoriasis during the relevant claims period on appeal to meet the current disability requirement. See e.g., December 2008 VA examination report; April 2010 private treatment record; April 2012 private treatment record; January 2020 VA treatment record. As such, remand to obtain VA addendum opinions is needed. The matters are REMANDED for the following actions: 1. Schedule the appropriate VA examination to help assess the claimed hypertension. The relevant documents in the electronic file should be reviewed by the VA examiner. The VA examiner should note such review in the requested medical opinions. The VA examiner should provide the following opinions: a) Is it at least as likely as not (i.e. probability of 50 percent or more) that the current hypertension is etiologically related to service, including to the in-service exposure to herbicides (Agent Orange)? In providing the reasons for the above opinion, the VA examiner should presume the Veteran was exposed to herbicide agents during service. The VA examiner should not use as a reason for the opinion that hypertension is not on VA’s herbicide presumptive service connection list (38 C.F.R. § 3.309(e)). b) Is it at least as likely as not (i.e. probability of 50 percent or more) that the current hypertension was caused by the service-connected diabetes mellitus? c) least as likely as not (i.e. probability of 50 percent or more) that the current hypertension was worsened beyond its normal progression by the service-connected diabetes mellitus? 2. Request that a VA medical professional review the electronic file and provide the VA addendum opinions requested below for the claimed skin disorders including eczema, seborrheic dermatitis, and psoriasis. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions as to causation, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinions: a) Is it at least as likely as not (i.e. probability of 50 percent or more) that the current eczema is etiologically related to service, including to the in-service exposure to herbicides (Agent Orange)? b) Is it at least as likely as not (i.e. probability of 50 percent or more) that the current seborrheic dermatitis is etiologically related to service, including to the in-service exposure to herbicides (Agent Orange)? c) Is it at least as likely as not (i.e. probability of 50 percent or more) that the current psoriasis is etiologically related to service, including to the in-service exposure to herbicides (Agent Orange)? (Continued on the next page)   The VA examiner should accept as fact that these skin disorders currently exist, notwithstanding the absence of findings at the VA examination. In providing the reasons for the above opinions, the VA examiner should presume the Veteran was exposed to herbicide agents during service. The VA examiner should not use as a reason for the opinions that eczema, seborrheic dermatitis, and psoriasis are not on VA’s herbicide presumptive service connection list (38 C.F.R. § 3.309(e)). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Choi, 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.