Citation Nr: 21028075 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-01 127 DATE: May 10, 2021 REMANDED Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1969 to February 1971, including service in the Republic of Vietnam. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in April 2019 and November 2020. 1. Entitlement to service connection for a skin disability. The Veteran reported he has had skin problems since Vietnam and has the same condition on the legs, abdomen, and upper back. See Third Party Correspondence (August 2012). The Board finds that remand is again necessary as neither the January 2020 VA examination, nor the January 2021 VA medical opinion (VAMO) is adequate. 38 C.F.R. § 3.159(c); Stegall v. West, 11 Vet. App. 268 (1998). It is not disputed that the Veteran has current diagnoses of a skin disability dermatitis. Further, as previously noted, the Veteran served in the Republic of Vietnam, and exposure to herbicides has been conceded. Service treatment records (STRs) reflect that at the time of enlistment in May 1969, the Veteran's examination showed a one-inch marking on his back. See Military Personnel Record (December 2014). A February 1971 separation physical shows normal findings with no indication of skin or lymphatic abnormalities. Id. Post-service treatment records reflect, in August and September 2010, the Veteran complained of itching on his neck, small welts, and itching behind his right ear. See Medical Treatment Record - Non-Government Facility (February 2013). In December 2012, the Veteran complained of rashes along his genitals, and was diagnosed with folliculitis of the genitals. Id. A February 2017 VA Agent Orange Registry examination noted exposure as well as numerous diagnoses, including dermatophytosis of foot. See CAPRI (October 2019). In August 2012, the Veteran's chiropractor reported at the time of evaluation the Veteran had an active patch of dermatosis on his upper thoracic spine in the cervicothoracic region. See Third Party Correspondence (August 2012). The chiropractor stated that "[o]n visual examination, his dermatosis is identifies [sic] as porphyria cutanea tarda" and is related to exposure to Agent Orange and more likely than not directly and causally related to military service. However, there is no indication that the VA physician adequately reviewed relevant records to address the Veteran's skin problems as the physician provided no rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). As such, the opinion is inadequate decide the matter of service connection for a skin disability. The Board finds that the VA examinations/opinions of record, including in April 2013, January 2020, and January 2021 VA are inadequate. At the April 2013 VA examination, the Veteran reported getting rashes on the neck and the body on and off, for which he used over-the-counter treatment. See C&P Exam (April 2013). The examiner opined that there is no evidence that the Veteran has been diagnosed with porphyria cutanea tarda based on the absence of rashes at the time of the examination. Id. However, the examiner did not address other skin disability diagnoses of record. At the January 2020 VA examination, the Veteran was diagnosed with dermatitis. See C&P Exam (January 2020). The examiner found that the Veteran's service records did not indicate any symptoms or complaint of a skin rash or condition and that the Veteran had not been diagnosed with porphyria cutanea tarda or treated for it, but also that the Veteran's intermittent rashes that come and go, along with spots on his bilateral legs, which date to an onset of approximate two to three (2-3) years after his separation from the military, were not related to service. Id. The opinion essentially relied on the absence of documented evidence of and "chronicity of care" for a skin condition while in the service; and it does not answer the question of whether the Veteran's current skin disability is related to service, to include conceded herbicide exposure. Notably, an absence of "chronicity of care" is not a valid basis for a negative medical conclusion given that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d). The Board, in its November 2020 remand, found that the January 2020 VA medical opinion (VAMO) necessitated an addendum because it did not address whether the Veteran's skin disability was due to exposure to herbicide agents, exposure to an irritant other than herbicide agents, or exposure to an allergen. See BVA Decision (November 2020). The Board requested, amongst other things, (1) an answer as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's dermatitis manifested during, or is the result of, his active service, to include as due to exposure to herbicide agents; (2) consideration of the Veteran's lay statements as to the onset and continuity of his symptomatology, and (3) the examiner to ascertain the most likely etiology of the Veteran's dermatitis. Id. A January 2021 VA addendum does not answer the questions posed by the Board in its November 2020 remand and provides inadequate conclusions. See Stegall, supra. First, the opinion is predicated on the absence of objective data or information without any consideration of the Veteran's reports of skin problems a few years after separation. Despite the Board's specific instructions to address his lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate.").The Board specifically requested that consideration is given to the Veteran's lay statements regarding his symptoms of skin disability after service. See Stegall, supra. The Board again notes the Veteran is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. Here, the January 2021 opinion does not reflect any consideration of the lay statements to specifically include his continued assertions of skin problems beginning a few years after separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). Along the same lines, the opinion does not identify or explain the relevance or significance of any history, clinical findings, etc., relied upon in reaching its conclusions. Second, the accuracy of the examiner's review of the Veteran's record appears questionable as, when stating that the Veteran's record does not show reports of skin problems for 43 years after separation, the examiner did not acknowledge the August and September 2010 documented complaints of itching on neck, small welts, and itching behind the right ear, as well as an August 2012 diagnosis of dermatosis. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Instead, the examiner noted an August 2014 diagnosis. Third, the January 2021 VAMO was based on general medical studies from the Mayo Clinic without addressing the Veteran's specific disability picture. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). While the examiner acknowledged that literature supports that exposure to Agent Orange can cause chloracne, he stated that it does not support that Agent Orange causes dermatitis. The opinion, however, provides no clear conclusion and no adequate application of the medical studies to the Veteran's particular circumstances. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). In view of the record and the Veteran's statements, the Board believes that a remand is again necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a right ankle disability. Issues 2 & 3: The Veteran contends his ankle disabilities are related to military service. See VA 21-526 Veterans Application for Compensation or Pension (August 2012). In December 2012, the Veteran reported he has had ankle pain since being in the military jumping from trucks. See CAPRI (May 2013). To ensure that VA has met its duty to assist, remand is again necessary. 38 C.F.R. § 3.159(c); Stegall, supra. As a preliminary matter, the Board notes the "presumption of soundness" provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. VA regulations provide that only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A review of the Veteran's available STRs, including the available examinations, shows no findings for ankle disabilities. While cramps in legs and foot trouble in May 1969 at the time of enlistment were noted in a Report of Medical History, this notation shows the Veteran's reports, and such was not noted at the enlistment physical examination in May 1969 or at any time during service. See Military Personnel Record (December 2014). Accordingly, the presumption of soundness is for application. To rebut this presumption, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). At the time of his separation in February 1971, the Veteran's lower extremities were found to be normal. See Military Personnel Record (December 2014). Post-service, the Veteran's private treatment records from February 2010 show intermittent pain in the right ankle, which was noted as having been a problem in the past. See Medical Treatment Record - Non-Government Facility (March 2013). Some tenderness at the anterolateral aspect of the left ankle region as compared to the right and slight effusion in that area were noted; the impression was leg length discrepancy with mild lateral ankle pain. Id. VA treatment note dated July 2012 shows sore bilateral ankles without edema with the right ankle joint slightly larger than left. See CAPRI (May 2013). Subsequent VA treatment record shows reports of ankle pain in April 2014, May 2014, August 2014, and x-rays from May 2014 show evidence of osteoarthritis. See CAPRI (October 2019). In April 2019, ankle braces were ordered. Id. While the Veteran has undergone a January 2020 VA examination with a January 2021 VA addendum for his bilateral ankle disability, neither is adequate. During the January 2020 VA examination, the examiner concluded that the diagnosed calcaneal spur is less likely than not incurred in or caused by the claimed in-service injury, event, or illness, explaining that there is no evidence of chronicity of care. See C&P Exam (January 2020). As stated above, absence of "chronicity of care" is not a valid basis for a negative medical conclusion given that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service. Cosman, supra; see also 38 C.F.R. § 3.303(d). Moreover, the examiner's conclusion referred to general findings in regard to the etiology of calcaneal spurs without explaining their application to the Veteran's case or providing conclusive medical findings. See Bailey, Polovick, supra. Significantly, the examiner did not indicate which studies he relied on in rendering his conclusions. A January 2021 VA addendum does not answer the questions posed by the Board in its November 2020 remand and provides inadequate conclusions. See Stegall, supra. First, the opinion marked that "the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness," but later provided that there is "NO clear and unmistakable evidence that the veteran had a left ankle disability that existed prior to service... STRs are silent for any documentation citing history of right ankle disability or injury prior to service." See C&P Exam (January 2021). The opinion appears internally inconsistent, including as to its discussion of right ankle as opposed to the left ankle. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the standard set out for an adequate medical opinion is not met, as the opinion makes no attempt to explain its findings and its inconsistency, or provide any supporting data. Second, the opinion dismissed the Veteran's lay statements of chronicity of symptoms on the basis of the Veteran not being qualified to "ascribe symptoms to a diagnosis." However, the Board again notes that consideration must be given to the Veteran's lay statements regarding his symptoms of bilateral ankle disability during and after service, because he is not providing a diagnosis. See Stegall, McKinney, both supra. The Board yet again notes that Veteran is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. Third, the January 2021 VAMO was based on general medical studies without addressing the Veteran's specific disability picture and without any discussion of the source of these general studies. See Bailey, supra. It is inadequate because the essential rationale for the opinion is not discernable. Although a roadmap connecting the supporting facts to the conclusion is not required, the "essential rationale for the opinion must be discernable from a review of the report as a whole." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). It is noted that certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Here, the record reflects that the Veteran has reported continuity of bilateral ankle symptomatology since service. The clinician is not required to accept the Veteran's theory that his military service caused his current bilateral ankle disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Along the same lines, the opinion manifests as inconclusive in stating that the Veteran's leg length discrepancy "could lead to ankle pain... intercurrent injury/disease cannot be ruled out as an etiology." See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (stating a medical examiner's use of ambivalent or noncommital phrases "should have signaled to the Board that the medical opinion was speculative and of little probative value"). Given that the January 2021 VA medical opinion provided no comprehensive reports with complete rationale, remand is warranted. See Stegall, supra. Lastly, the Board notes a Social Security Administration (SSA) explanation of determination, indicating that the Veteran receives SSA compensation. On remand, the Agency of Original Jurisdiction should seek to obtain those records before proceeding with the appeal. 38 U.S.C. § 5103A(c)(3); Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions (e.g. left wrist pain since service, etc.). Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain all the Veteran's VA treatment records from January 2021 to the Present. 2. Obtain all SSA records, including a copy of the award letter. Any negative search results should be noted in the record. 3. Thereafter, obtain an addendum opinion from an appropriate clinician who has not examined the Veteran in connection with this appeal to determine the nature and etiology of the Veteran's skin disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Detail the Veteran's reported symptoms, including the nature, onset, progression and severity of his reported symptoms; if there is any medical reason to accept or reject his reported symptoms, this should be noted. The clinician should opine on as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's skin disability, to include dermatitis, manifested during, or is the result of, his active service, to include as due to exposure to herbicide or other chemical agents, allergens or irritants. In formulating his or her opinion, the examiner should: (a.) consider and address the competent medical and lay evidence of record, including the Veteran's lay statements as to the onset and continuity of his symptomatology. Indicate whether the Veteran's report of symptoms align with how the currently diagnosed disability is known to develop or are his reports generally inconsistent with medical knowledge or implausible. Explain. (b.) identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE: Reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate. 4. Obtain an addendum opinion from an appropriate clinician who has not examined the Veteran in connection with this appeal to determine the nature and etiology of the Veteran's bilateral ankle disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Detail the Veteran's reported symptoms, including the nature, onset, progression and severity of his reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. Then, opine on: (a.) Whether any diagnosed disability is at least as likely as not related to an in-service injury, event, or disease. Consider the Veteran's reports of ankle pain since jumping from trucks in the military. Indicate whether his reports about his symptoms align with how the currently diagnosed disability is known to develop or are his reports generally inconsistent with medical knowledge or otherwise implausible. Explain. (b.) If arthritis is diagnosed, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 5. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.