Citation Nr: 21022007 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-39 743 DATE: April 14, 2021 ORDER Entitlement to service connection for a skin condition, to include as due to Agent Orange exposure, is granted. Entitlement to service connection for lower left extremity peripheral neuropathy, to include as due to Agent Orange exposure, is granted. REMANDED Entitlement to service connection for a left leg disability, to include as secondary to service-connected left lower extremity peripheral neuropathy, is remanded. FINDINGS OF FACT 1. The Veteran’s diagnosed skin conditions, other than skin cancer, are at least as likely as not etiologically related to his active duty service 2. The Veteran’s lower left extremity peripheral neuropathy is at least as likely as not etiologically related to his active duty service, to include as due to Agent Orange exposure. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a skin condition, to include as due to Agent Orange exposure, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing entitlement to service connection for lower left extremity peripheral neuropathy, to include as due to Agent Orange exposure, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1969 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2020 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in July 2019, it was remanded for additional development. Specifically, the RO was instructed to obtain medical opinions regarding the Veteran’s claimed disabilities. The Veteran was provided with the relevant examinations. As such, the Board finds that the AOJ substantially complied with the directives in the July 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. Early onset peripheral neuropathy (with an onset within one year of exposure) is among the diseases specified. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Skin Condition The Veteran contends that his claimed skin disabilities are the result of his active duty service, to include as due to his conceded in-service herbicide exposure. The Board notes that dermatitis, seborrheic keratosis, tinea corporis, and eczema are not conditions presumptively related to Agent Orange exposure. However, the Veteran can still prove service-connection on a direct basis. The Board also notes that the Veteran has current diagnoses of eczema, dermatitis, actinic keratosis, and seborrheic keratosis. See February 2020 VA Skin Diseases examination. Therefore, the central issue that must be resolved is whether the Veteran’s current disabilities originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). By way of history the Board notes that entitlement to service connection for skin cancer was denied in a prior October 2018 Board decision. In September 2019, the Court of Appeals for Veteran’s Claims (Court) remanded the issue of entitlement to service connection for skin conditions. The Court noted that the Board relied only on an October 2014 VA examination report which only addressed skin cancer. The Court noted that the Veteran initially filed a claim for “skin lesions” and was diagnosed with several other skin conditions. As such, the Court remanded the Veteran’s claim so the Board could address the Veteran’s entitlement to service-connection for disabilities other than skin cancer. The Board then remanded the Veteran’s claim in February 2020 for a new examination. In response to the Board remand, the Veteran was provided with a February 2020 VA Skin Diseases examination. The examiner diagnosed the Veteran with eczema, dermatitis, actinic keratosis, and seborrheic keratosis. The examiner noted that the Veteran was diagnosed with tinea versicolor after his deployment to Vietnam. The examiner explained that tinea versicolor is a fungal infection that more likely than not led to the Veteran’s tinea corporis fungal infection of the body, which itself more likely than not led to the Veteran’s dermatitis and eczema due to repeated trauma to the skin from the fungal infections. The examiner opined that the Veteran’s tinea corporis, eczema, and dermatitis are at least as likely as not (a 50 percent probability or greater) etiologically related to his active duty service to include as due to his herbicide exposure. However, the examiner did note that the Veteran’s actinic keratosis is a precancerous skin lesion and seborrheic keratosis is a common skin growth in older people that is not cancerous. As such, the examiner opined that these disabilities are less likely than not (less than a 50 percent probability) etiologically related to the Veteran’s active duty service to include his in-service herbicide exposure. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Board has considered the evidence of record. The Board notes that the February 2020 VA examiner is a medical professional competent to opine as to the etiology of the Veteran’s skin conditions. There is no evidence that the examiner is not credible. Moreover, the examiner provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. As such, the Board affords this examination significant probative weight. In light of the February 2020 VA examination opinion, the most probative evidence of the record establishes that the Veteran’s current eczema, dermatitis, and tinea corporis skin disabilities are related to his active duty service, to specifically include his conceded herbicide exposure. Accordingly, service connection for the Veteran’s claimed skin conditions is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lower Left Extremity Neuropathy The Veteran seeks service connection for his lower left extremity peripheral neuropathy which he contended was caused by his in-service exposure to the herbicide colloquially referred to as Agent Orange. The medical evidence confirms the Veteran had a diagnosis of lower left extremity peripheral neuropathy, and that it had manifested to a compensable degree. Specifically, the Board notes the February 2020 VA Peripheral Nerves examination which confirms the Veteran’s diagnosis of lower left extremity peripheral neuropathy. During this examination, the examiner opined that the Veteran’s exposure to Agent Orange in service led to his peripheral neuropathy present in his left leg. Additionally, the examiner noted that the Veteran began experiencing symptoms within a year of being exposed to herbicides in service. This corroborates the lay statements provided by the Veteran where he noted experiencing numbness and tingling within a year of leaving Vietnam. See September 2014 lay statement. The examiner concluded that the Veteran’s diagnosed lower left extremity peripheral neuropathy is at least as likely as not (a 50 percent probability or greater) etiologically related to his active duty, to include herbicide exposure. As noted above, this condition shall be presumed to have been caused by service if a veteran was exposed to herbicides and it manifest within a year of that exposure. The Veteran’s Agent Orange exposure has been conceded, and the preponderance of the evidence indicates his left lower extremity neuropathy became manifest within a year of his exposure. Therefore, the Veteran’s claim for service-connection for lower left extremity peripheral neuropathy must be granted. In sum, the evidence of record demonstrates the Veteran has conceded in-service herbicide exposure, and he was diagnosed with lower left extremity peripheral neuropathy that manifest within a year of his exposure to herbicides. Therefore, service connection is warranted for the Veteran’s lower left extremity peripheral neuropathy on a presumptive basis. REASONS FOR REMAND Left Leg Disability The Board is of the opinion that additional development is required before the remaining issue on appeal is decided. While the RO obtained a December 2020 VA examination for the Veteran’s claimed left leg disability, the Board finds it to be inadequate. During the examination the examiner diagnosed the Veteran with degenerative arthritis of the left knee and status post compound fracture of the left tibia. However, in proffering an opinion, the VA examiner solely addressed the status post compound fracture of the left tibia and did not address whether the Veteran’s left lower extremity radiculopathy could have caused or aggravated the Veteran’s left knee degenerative arthritis. As such, the Board finds an additional examination is required to determine the etiology of the Veteran’s claimed disability. The matters are REMANDED for the following action: Afford the Veteran a VA examinations by an examiner with sufficient expertise to address the etiology of the Veteran’s left leg disabilities. The electronic records should be made available to and reviewed by the examiner. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the Veteran’s left leg disabilities at least as likely as not (a 50 percent probability or greater): proximately due to, or aggravated by, his service-connected left lower extremity peripheral neuropathy. Specifically, the examiner should address each diagnosed disability, including left knee arthritis and status post tibial fracture, and opine on their etiology. For purposes of these opinions, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran’s competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.