Citation Nr: 21024361 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-35 576A DATE: April 22, 2021 ORDER The claim of entitlement to service connection for a lumbar spine disorder is denied. REMANDED The claim of entitlement to service connection for actinic keratosis, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT The Veteran’s degenerative arthritis of the lumbar spine is not etiologically related to service or presumed to have been incurred in service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to July 1969. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an August 2019 Travel Board hearing. A transcript is of record. The claims were remanded by the Board in September 2019 and December 2020 and have now been returned for further appellate consideration. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime), 5107 (2012); 38 C.F.R. § 3.303 (2020). The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including degenerative arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). 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. As degenerative arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Under the benefit-of-the-doubt rule embodied in 38 U.S.C. § 5107(b) (2012), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran’s favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). Entitlement to service connection for a lumbar spine disorder. The Veteran contends that his back disability is due to a combat injury involving a fall onto a barge while working on river boats supporting combat operations in Vietnam. In August 2019, he testified that he was in combat and his DD-214 documents receipt of the Vietnam Campaign Medal. The Board finds that the Veteran is a combat veteran whose lay evidence is sufficient proof of an in-service injury as it is consistent with the circumstances of combat. 38 U.S.C. § 1154(b) (2012). A January 2015 VA examination diagnosed lumbar strain but found that it was not due to service as there was no documentation of an injury in service. The Board remanded the claim for additional examination in September 2019 noting that the January 2015 VA examination improperly disregarded the Veteran’s lay evidence regarding a combat injury. Thus, a new examination was required. Upon remand, the Veteran’s in-service combat injury was to be presumed and considered when rendering a nexus opinion. A VA in-person examination was provided in December 2019. The report is of record as is additional benefits questionnaire in January 2020. In the examination report, the Board noted that the restatement of the requested opinion asked the examiner to consider the Veteran’s reported fall but did not include the section of the remand directives asking the examiner to presume the combat injury. In the opinion, the examiner noted the Veteran’s reports of a fall injury but found that the Veteran’s lumbar strain was not due to service. As a rationale, the examiner stated that “[w]hile the veteran reports he had a fall injury,” records were silent for a fall injury and exit examination was normal. Exit exam was normal, and his wife reported that she first noted his back pain after they were married, approximately 13 years post service. The examiner then said that arthritis on the x-rays was noted a mild and his intervertebral disc syndrome (IVDS) and radiculopathy were more likely due to normal aging and wear and tear. The Board remanded the claim again on December 1, 2020, noting that the opinion did not contain any indication that the examiner presumed the Veteran’s combat injury as requested in the September 2019 Board decision. First, the restatement of the requested opinion did not contain instruction that the Veteran’s testimony was sufficient evidence of the combat injury. Second, the phrasing of the opinion did not indicate that the examiner presumed the injury but instead suggested that the examiner discounted the lay evidence due to the lack of corroborating medical evidence. Finally, there was no indication in the opinion that the examiner considered the Veteran’s status as a combat veteran. Remand for a new examination to properly consider the Veteran’s presumed combat injury was therefore required. Additional VA examination was provided on December 16, 2020, by a different VA examiner. The claims file was reviewed. It was noted that current lumbar diagnoses included lumbosacral strain, degenerative arthritis, and IVDS. This VA examiner disagreed with the diagnoses of lumbosacral strain and IVDS. There was no objective medical record evidence to include magnetic resonance imaging (MRI) and/or electromyographic (EMG) to confirm these diagnoses. Degenerative arthritis of the spine, however, was confirmed by X-rays in December 2019. It was the examiner’s opinion that degenerative arthritis of the spine was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, to include his presumed injury from falling onto a barge in Vietnam. The Veteran’s degenerative arthritis of the spine was at least as likely as not (50 percent or greater probability) caused by the natural ageing process. Further, in his report, the examiner noted that there was no nexus between the Veteran’s claimed in-service injury, event, or illness to include presumed injury from falling onto a barge in Vietnam and his current degenerative arthritis of the spine. For rationale, he noted that there was no objective medical record or reputable medical literature evidence to indicate otherwise was found. There was no mechanism of action for cause of degenerative arthritis of the spine by presumed injury from falling onto a barge in Vietnam. The Veteran’s diagnosis of degenerative arthritis of the spine was not found in service. Nevertheless, no objective medical record evidence to indicate that the Veteran’s claimed in-service injury, event, or illness to include his presumed injury from falling onto a barge in Vietnam did not resolve without residual was found. The “Spine...” exam was marked “Normal” by the provider in DoD RAD/Separation Report of Medical Examination 06/11/1969 confirming no lumbar spine pain/condition/pathology at the time of separation. No immediate objective post service medical record evidence to indicate treatment for chronic/ongoing lumbar spine pain/condition/pathology was found. The Veteran’s greatest risk factor for his degenerative arthritis of the spine is his age and not the claimed in-service injury, event, or illness to include his presumed injury from falling onto a barge in Vietnam. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant’s medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the December 2020 VA examiner has found no nexus between the Veteran’s military service and his low back disorder. The examiner’s opinion was based on a thorough review of the record, including the lay statements and medical evidence submitted by the Veteran, and the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the December 2020 VA examiner. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. at 187 (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Given the explanation provided by the December 2020 VA examiner and the fact that the examiner clearly considered all relevant evidence and facts, the Board finds that the VA medical opinion provides an adequate basis for consideration of whether the Veteran’s claimed low back degenerative arthritis is medically related to his military service. Accordingly, the Board finds that the medical evidence demonstrating the absence of nexus between the currently diagnosed lumbar spine disability and the Veteran’s active duty service, to include his presumed fall on a barge, outweighs any medical or subjective evidence suggestive of a nexus. Finally, although the record shows a diagnosis of degenerative changes of the lumbar spine, there is no probative evidence that arthritis was noted in service with continuity of symptomatology since service that is attributable to the chronic disease, nor is there any indication that arthritis was manifest to a compensable degree within one year of service separation. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). The Board has carefully considered the contentions of the Veteran that his claimed low back disorder was due to his military service. To this end, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran’s assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran’s favor when the evidence is in equipoise. Considering the record, including post-service medical evidence, the December 2020 VA examiner’s opinions, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the preponderance of the evidence is against the claim of entitlement to service connection for a lumbar spine disability. Thus, the benefit-of-the-doubt rule does not avail the Veteran. See 38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. at 54-56. REASONS FOR REMAND Entitlement to service connection for actinic keratosis, to include as due to exposure to herbicide agents. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that his actinic keratosis is due to exposure to herbicide agents in Vietnam. The Board notes that the Veteran had service in the Republic of Vietnam during the Vietnam era and herbicide exposure is therefore presumed. A January 2015 VA examination diagnosed actinic keratosis but found that it was not due to service as there was no documentation of an in-service injury. However, the opinion did not address whether actinic keratosis was due to the Veteran’s presumed herbicide agent exposure. Thus, the Board also remanded this claim for a new examination in September 2019. A December 2019 VA examination diagnosed actinic keratosis but found that it was not likely due to service, to include exposure to herbicide agents. As a rationale, the examiner stated that actinic keratosis was associated with damage from chronic exposure to UV radiation from years of sun exposure or indoor tanning, and not to herbicide agent exposure. The provider further stated that actinic keratosis was not a recognized condition associated with herbicide agent exposure, service treatment records were silent for skin complaints during service, and actinic keratosis was not noted until the 2015 VA examination. The Board noted in a remand decision of December 1, 2020, that the record, including the December 2019 examination report, was silent for any finding that the Veteran had either chronic sun exposure or engaged in indoor tanning after service. The basis of the examiner’s conclusion that these were more likely causes than herbicide exposure was therefore unclear, particularly as the Veteran’s competent lay statements indicated that he worked indoors after service. Remand for a new opinion regarding the etiology of the Veteran’s disability was therefore required. The requested examination was conducted on December 18, 2020. The examiner reviewed the claims file. It was his opinion that the Veteran’s actinic keratosis of the arms, legs, and back were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. This VA examiner agreed with the medical opinion and rationale as expressed in the December 2019 report noting that the rationale was consistent with the objective medical record and reputable medical literature evidence and was therefore adequate to support the opinion. The Veteran’s actinic keratoses were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness to include his presumed exposure to herbicide agents in Vietnam. Instead, the skin disorder was at least as likely as not (50 percent or greater probability) caused by Mayo Clinic online risk factors to include age older than 40, history of sun exposure, and the tendency to freckle or burn when exposed to sunlight. The examiner added that there was no nexus between the Veteran’s claimed in-service injury, event, or illness to include presumed exposure to herbicide agents in Vietnam and his current actinic keratoses. No objective medical record or reputable medical literature evidence to indicate otherwise was found. There was no mechanism of action for cause of actinic keratosis by presumed exposure to herbicide agents in Vietnam. He also noted that the DBQ states the actinic keratoses were located on the “arms, legs, and back.” The legs and back were not generally exposed to sun. The Veteran’s diagnosis of actinic keratosis was not found in service. Nevertheless, no objective medical record evidence to indicate that the Veteran’s claimed in-service injury, event, or illness to include his presumed exposure to herbicide agents in Vietnam did not resolve without residual was found. The “Skin...” exam was marked “Normal” by the provider in DoD RAD/Separation Report of Medical Examination 06/11/1969 confirming no skin condition/pathology at the time of separation. No immediate objective post service medical record evidence to indicate treatment for chronic/ongoing skin condition/pathology was found. The Veteran’s greatest risk factors for his actinic keratosis were those listed in Mayo Clinic online and not the claimed in-service injury, event, or illness to include his presumed exposure to herbicide agents in Vietnam. In an additional statement of January 6, 2021, the same VA examiner was asked to address the Veteran’s assertion that his sun exposure post service was minimal as he was an indoor classroom teacher. In response, the VA examiner said: I have reviewed the conflicting medical evidence and am providing the following opinion: At issue is not how much post service sun exposure the Veteran had, but rather does herbicide/Agent Orange exposure cause actinic keratosis (AKs). It does not. Sun exposure is not quantified as a risk factor. No objective medical record evidence to confirm herbicide/Agent Orange exposure causes AKs [actinic keratoses) was found. Please see Mayo Clinic online risk factor list in CTHCS Medical Opinion with rationale 12/18/2020. Herbicide/Agent Orange exposure is not on the list. The examiner’s statement appears to be in conflict with his previous assertion that risk factors for actinic keratosis included sun exposure. Moreover, he did not adequately address the Veteran’s assertion that he had little sun exposure after military service as he worked indoors. Additional opinion is necessary. The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate VA clinician who has not previously examined the Veteran regarding: Whether the Veteran’s actinic keratoses is at least as likely as not related to his in-service sun exposure. In this regard, the examiner should specifically address the Veteran’s contentions that he had little sun exposure after service after he was a classroom teacher. Whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosed skin disability is related to service, to include exposure to herbicide agents. A complete rationale for the requested opinions should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. 2. If upon completion of the above the issue remains denied, the appeal should be returned to the Board after compliance with appellate procedure. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.