Citation Nr: 21021591 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-18 994 DATE: April 13, 2021 ORDER Entitlement to service connection for low back disability is granted. REMANDED Entitlement to an initial compensable rating for eczema is remanded. FINDING OF FACT Resolving doubt in the Veteran’s favor, the Board finds that the Veteran’s current low back disability is related to active service. CONCLUSION OF LAW The criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2001 to March 2001 and from August 2008 to September 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board remanded the Veteran’s claims for additional development. The matters have been returned to the Board for review. Entitlement to service connection for low back disability Under the relevant laws and regulations, 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. Generally, the evidence must show: (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. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Current medical evidence shows a diagnosis of lumbosacral strain. Service treatment records reflect complaints of low back pain. A September 2009 record shows that the Veteran complained of low back pain that started gradually and was described as chronic. On examination, range of motion was normal, but there was tenderness on palpation. It was noted that June 2009 x-ray findings were normal; however, another copy of the June 2009 x-ray report as shown in a March 2013 VA examination report noted mild degenerative changes. A November 2010 record noted that the Veteran had recurring lumbar symptoms for one year. A September 2010 record indicated a 12-hour history of low back pain with pain to left buttock. The September 2011 separation report of medical history shows that the Veteran reported swollen or painful joints and recurrent back pain or any back problem. He stated that he had back injuries from 2009 to 2011 and that he had recurrent back problems. Shortly after separation from active service, the Veteran initiated a claim for service connection for a back disability. In February 2013, the Veteran was provided a VA medical examination. The examiner determined that the Veteran had a back strain during service that had resolved and did not find evidence of a current disability. The Veteran reported pain and flare-ups that limited his ability getting up after sitting and had difficulty lifting over 20 pounds. Range of motion was normal. The examiner noted that a February 2013 x-ray report was normal. In August 2016, the Veteran stated that he suffered from lower back pain during service and continued to suffer from back pain. He reported that his current back condition began during service. A June 2016 private chiropractic record shows that the Veteran was treated for low back pain. In a September 2009 letter, Dr. T.S. noted that the Veteran had been a patient since August 2009 and presented with complaints of lower back pain with reduced lumbar flexion, extension, and both lateral flexion modes. It was noted that the Veteran had three visits per week, but still had complaints of lower back pain. In January 2020, the Veteran was provided another VA examination and the report shows a diagnosis of lumbosacral strain. The Veteran stated that he hurt his back during a 2009 field exercise. He was sent to a chiropractor and felt better for a while, but then again injured his back in 2010 during a course drill. The Veteran reported that over time, he had recurring back pain, pain in his back, started getting acupuncture weekly for a while, and steroid injections. The examiner provided a negative etiology opinion noting that review of the medical record indicated back pain complaints with some improvement. The examiner stated that during service, the condition was acute only. Here, the Board acknowledges that there is no positive etiology opinion as to the Veteran’s claimed low back disability, that the initial VA examination report indicated normal findings, and it is unclear whether the Veteran has degenerative changes of the lumbosacral spine. However, the Board finds that the first VA medical opinion is insufficient given the Veteran’s submission of private evidence indicating continued treatment for low back pain, and the January 2020 VA medical opinion is inadequate as the examiner did not address the Veteran’s report that his back condition started during service and continued to worsen over time. Given the Veteran’s numerous complaints during service and at separation, his filing a claim shortly after service, coupled with his competent and credible statements as to his symptoms of back pain since the time in service, and his current diagnosis of lumbosacral strain, the Board will resolve doubt in the Veteran’s favor, and finds that his low back disability had its onset in active service. See 38 C.F.R. § 3.303(d) (“[s]ervice 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”). Service connection for a low back disability is granted. REASONS FOR REMAND Entitlement to an initial compensable rating for eczema is remanded. The Board finds that a new VA examination is needed to clarify the Veteran’s current skin diagnosis. In the February 2013 VA examination, the Veteran was diagnosed with eczema and contact dermatitis. The affected skin was described as initially being a small patch on the Veteran’s right shoulder blade, which developed into a bigger patch found on the Veteran’s back, upper right and shoulder blade region. It was further described a patch on the upper right back with mild erythema that felt rough to touch and slightly raised. The examination report also noted there were few scattered eczema lesions on the abdomen and back. At his January 2016 VA examination, the Veteran’s skin diagnosis was eczema with a 2010 onset. The examiner described the Veteran’s appearance as “lichenified, erythematous and scaly patch on the upper back consistent with eczema.” The examiner indicated that there was no change in the diagnosis and that the Veteran’s condition was active. At his January 2020 VA examination, the report indicates that the Veteran was treated by a private dermatologist in 2017 who diagnosed the Veteran with notalgia paresthetica and not eczema. The Veteran reported that the initial onset on his skin rash appeared on the right shoulder and the examiner appears to affirm that the current skin rash was present on the Veteran’s right shoulder. The examiner described the appearance of the skin rash as a discolored, rough, brown hyperpigmented area located in the right shoulder area. The Veteran reported that his skin condition can be uncomfortable because the itching is intense. The examiner appears to have provided an unfavorable opinion for the Veteran’s diagnosed notalgia paresthetica; however, it is unclear whether this condition is a progression of the Veteran’s eczema or a correction of an incorrect diagnosis. Also, in the prior Board remand, the January 2020 VA examiner was asked to “include discussion of the Veteran’s symptoms during a period of flare-up, to include the frequency and duration of flare-ups” if the examination was not performed during a period of flare-up. The examination report does not contain any findings regarding flares and therefore does not comply with the Board’s remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). Lastly, the Board notes that the Veteran’s recent VA examination mentions private treatment for his skin in 2017; however, these records are not in the claims file. The Veteran should be given the opportunity to identify any relevant private treatment records concerning his skin condition. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for his private physician(s) and/or dermatologist(s), specifically (a) Del Ray Chiropractic and Massage, and (b) the dermatologist who diagnosed notalgia paresthetica. 2. Schedule the Veteran for a VA examination with an appropriate clinician for his skin disability. Efforts must be made to schedule the examination during a flare-up. If it is not possible, the examiner should note that the examination was not provided during a flare-up, and discuss the Veteran’s symptoms during a flare-up, to include the frequency and duration of flare-ups. If the Veteran is using topical treatments, the examiner should opine whether such treatment affects the body as a whole and whether the treatment is “like” a corticosteroid or other immunosuppressive drug. The report must note all manifestations concerning the Veteran’s service-connected skin disability and address any use of corticosteroids during the appeal period. The examiner is asked to clarify whether the symptoms shown, and descriptions reported, reflect that notalgia paresthetica is a progression of eczema or correction of an incorrect diagnosis. A rationale must be provided for all opinions expressed. 3. After taking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought remain denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.