Citation Nr: 21020866 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-08 366 DATE: April 8, 2021 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. Entitlement to service connection for a left ankle disability is denied. REMANDED Entitlement to service connection for a lung disorder, to include tuberculosis is remanded. Entitlement to service connection for a skin disorder, characterized as psoriasis, to include as due to the lung disability claimed as tuberculosis is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, symptoms of the currently diagnosed degenerative arthritis of the lumbar spine had their onset during service and have being continuous since separation from service. 2. The weight of the evidence is against a finding that the Veteran’s claimed left ankle disability had its onset during the Veteran’s active service, or is otherwise related to an injury, event, or occurrence during the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. 2. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from June 1971 to June 1977. This appeal stems from October 2011 and December 2011 rating decisions. In a June 2018 decision, as pertinent here, the Board denied service connection for a lumbar spine disability, a left ankle disability, tuberculosis, and psoriasis. The Veteran timely appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and by a January 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded the issues for further development, to include obtaining new medical opinions. In August 2019 the Board remanded the claim in compliance with the January 2019 JMPR. The case has since returned to the Board for further appellate consideration. Service Connection – Applicable Laws and Regulations Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with arthritis of the lumbar spine, which is listed as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Lumbar Spine - Analysis The Veteran asserts that the currently diagnosed lumbar spine disability had its onset during service. He is currently diagnosed with arthritis of the lumbar spine. See e.g., December 2019 VA examination report. Regarding in-service incurrence, a September 1975 treatment note in the Veteran’s service treatment records (STRs) reflects complaints of lumbar back pain. On review, the Board finds that service connection on a presumptive basis is warranted. Notably, in September 2011 written statements to VA, the Veteran reported having experienced back pain since the time of his active service and the Veteran’s spouse reported remembering the Veteran complaining of back pain as early as the 1980s. The available private treatment records showed complaints of chronic low back pain. Although the December 2019 VA examiner provided a negative nexus opinion, such opinion gave no consideration to the Veteran’s competent and credible reports as to the onset of his back pain. Specifically, the examiner conclusion that any supposition based on the Veteran’s military occupational specialty would have been speculative at best. Additionally, the examiner relied on lack of contemporaneous medical records that showed chronicity of the Veteran’s back disability. However, the Board notes that lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n.1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). While the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d 1331. In this regard, although no documented medical evidence is available from separation until 2003, the Board finds the Veteran’s lay reports as to continuity of symptoms both competent and credible. After review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in equipoise on the question of whether the noted back pain in service is related to the diagnosed post-service back disability. See 38 C.F.R. § 3.303(b). As discussed above, throughout the pendency of the appeal, the Veteran competently and credibly asserted that symptoms of his back pain have been continuous since separation from active duty. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that continuous symptoms of the currently diagnosed back disability from back pain noted in service is shown. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This is sufficient to satisfy the nexus requirement. Hence, service connection for the Veteran’s back disability must be granted. Left Ankle – Analysis The Veteran asserts that the currently diagnosed left ankle disability had its onset during service. The Veteran is currently diagnosed with a left ankle strain. See e.g., August 2011 VA examination report. Regarding in-service incurrence, a September 1972 note in the Veteran’s STRs reflects that the Veteran “twisted ankle playing football.” X-ray results were recorded as negative. Ace bandage and ice were prescribed. A February 1975 note reflects complaints of bilateral ankle pain. However, as to the issue of nexus, the Board finds that the evidence is against finding that the currently diagnosed left ankle strain had its onset during service or is otherwise related to it. The Veteran’s June 1977 separation examination reflects no complaints or diagnoses related to the Veteran’s left ankle. In August 2011, the Veteran underwent a VA ankle examination, at which time the examiner rendered a diagnosis of a left ankle strain. The examiner opined that the diagnosed left ankle strain was less likely than not related to service. The examiner acknowledged the in-service complaint and treatment for a left ankle but noted that the Veteran had no residual x-ray findings and minimal findings noted on examination. The examiner reasoned that x-rays at the time of this examination were negative for “degenerative traumatic arthritis, ankylosis, [and/or] other.” Pursuant to the January 2019 JMPR, in August 2019 the Board remanded the claim to obtain another medical opinion. Specifically, the Board directed that the examiner discuss the September 1972 and February 1975 STRs notes regarding left ankle treatment and explain why “significant findings” in service or on examination are needed if such were part of the examiner’s rationale. In December 2019, the Veteran underwent an additional VA examination, at which time the examiner confirmed a diagnosis of a left ankle sprain. The examiner opined that it was less likely than not that the diagnosed left ankle strain was related to service. The examiner reasoned that “twisted ankle” as documented in September 1972 is a mechanism of injury, but not a diagnosis. The examiner went on to state that, if the Veteran’s September 1972 injury were such that it would result in the Veteran’s current left ankle complaints, they would expect to have seen positive x-ray findings in September 1972, and that there likely would have been post-traumatic changes visible on x-rays performed as part of the VA examinations in August 2011 and December 2019. While the Veteran is competent to report symptoms he experiences at any given time, such as pain, under the fact of this case, he is not competent to determine the etiology of his left ankle strain, as it is a medical statement that requires medical training and expertise, which he is not shown to possess. The Board concludes that the Veteran’s lay statements as to etiology are outweighed by the probative December 2019 VA medical opinion, which explained why the current diagnosis could not have been related to the in-service treatment. Of note, there is no other medical evidence contradicting this opinion. The Board concludes that the Veteran has not presented competent evidence showing that his left ankle strain is related to service. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. REASONS FOR REMAND A remand is necessary to obtain adequate medical opinions as to the likely etiology of lung and skin disorders. Lung Disorder In August 2019 the Board remanded the Veteran’s lung disability claim for a VA examination and opinion that addressed whether it was as least as likely as not that any identified lung disability was caused or aggravated by the Veteran’s service, to include tuberculosis exposure, pneumonia, or any in-service asbestos or chemical exposure. In this regard, the Board notes the Veteran’s report to a March 2019 VA examiner of exposure to chemicals such as lead, asbestos, and polychlorinated biphenyls (PCBs) in the course of his active service as a heating systems specialist. The Veteran’s June 1977 separation examination reflects an in-service diagnosis of inactive tuberculosis. Subsequent to the Board’s remand, The Veteran was afforded a VA examination in December 2019. The December 2019 VA examiner’s report notes a 1973 positive tuberculosis skin test; however, the examiner stated that the Veteran had never been diagnosed with “active or latent tuberculosis.” The Board is unable to substitute its own judgment for that of medical professionals, and so cannot reconcile these two seemingly contradictory entries in the December 2019 examiner’s report either with each other, or the June 1977 note in the Veteran’s STRs that the Veteran had been diagnosed with inactive tuberculosis. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Further, the only imaging study discussed by the December 2019 VA examiner is a chest x-ray performed at the time of the examination. The results of that examination are recorded as “no evidence of significant change compared to prior examination.” The December 2019 VA examiner stated that “there is no current evidence of pneumonia, asbestosis, ‘nodules’, ‘scarring’, residuals of pulmonary [tuberculosis], or any other respiratory conditions . . .” However, the Veteran’s STRs reflect a March 1976 x-ray finding of a “two centimeter irregular nodule in the left lower lobe with extensive pleural thickening . . . that was not present on previous chest films [emphasis added].”A February 1977 note in the Veteran’s STRs reflects complaints of chest pain associated with deep breathing. Private treatment records reflect x-ray findings of a pulmonary nodule in November 2006, October 2008, and May 2010. An August 2011 x-ray performed as part of a VA examination reflects “multiple small calcified nodules in the hilar regions and left lower lobe consistent with old calcified granulomata.” While the December 2019 VA examiner acknowledged the December 2019 x-ray documenting “no significant change” from previous examinations, their report reflected no consideration of the status quo from which there had been no change; specifically, the existence of a pulmonary nodule or nodules dating to approximately March 1976. Accordingly, a new medical opinion is necessary prior to deciding the claim on the merits. Skin Disorder As discussed in the January 2019 JMPR, the respiratory and skin disabilities are intertwined given the Veteran’s contention that his claimed psoriasis is the result of his claimed tuberculosis. The December 2019 VA opinion stating that there is no tuberculosis or evidence of other respiratory disability is inadequate as it fails to acknowledge/discuss the in-service documentation of inactive tuberculosis and in-service/post service x-ray findings of pulmonary nodules. Furthermore, the examiner noted the risk factors for psoriasis, but did not identify any of those in this specific Veteran. Lastly, the examiner relied upon the fact that exposure to asbestos was not verified; however, there is no indication that VA attempted to verify such exposure. Accordingly, a new medical opinion is necessary prior to deciding the claim on the merits. The matters are REMANDED for the following action: 1. The RO should take any appropriate steps to attempt to verify the Veteran’s claimed asbestos exposure. Such development should include contacting the Veteran to obtain further identifying information about the claimed exposure. 2. Following the completion of remand directive 1, obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed lung disorder. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After review of the record, the examiner is asked to respond to the following: (a) Identify all currently diagnosed lung disorders. If the examiner determines that a current diagnosis is not shown, he or she must explain how any previous diagnosis resolved or otherwise no longer displays any pathology. ** Specifically, the examiner must address the following: (i) March 1976 x-ray finding of a “two centimeter irregular nodule in the left lower lobe with extensive pleural thickening... that was not present on previous chest films [emphasis added];”(ii) A February 1977 note in the Veteran’s STRs reflects complaints of chest pain associated with deep breathing; (iii)Private treatment records reflect x-ray findings of a pulmonary nodule in November 2006, October 2008, and May 2010; and, (iv) An August 2011 x-ray performed as part of a VA examination reflects “multiple small calcified nodules in the hilar regions and left lower lobe consistent with old calcified granulomata.” (b) For each currently diagnosed lung disorder, opine whether it is at least as likely as not (a 50 percent or higher probability) had its onset during service or is otherwise related to it, to include as due to exposure to asbestos if is such is confirmed, positive tuberculosis test during service, and/or exposure to toxic chemicals. A complete rationale should be provided for all opinions. 3. Following the completion of remand directive 1, provide the Veteran with an appropriate VA examination to help determine the likely etiology of the claimed skin disorder. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed skin disorders. (b) Elicit from the Veteran and the record the history of all signs and symptoms associated with the claimed skin disorder during service and since separation from service. (c) For each currently diagnosed skin disorder, opine whether it is at least as likely as not (a 50 percent or higher probability) had its onset during service or is otherwise related to it, to include as due to exposure to asbestos if is such is confirmed, positive tuberculosis test during service, and/or exposure to toxic chemicals. A complete rationale should be provided for all opinions. (Continued on the next page)   4. Thereafter, readjudicate the remanded claims. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw, 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.