Citation Nr: 21028128 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-34 510 DATE: May 10, 2021 ORDER Service connection for degenerative disc disease (DDD) of the lumbar spine, with lumbar spondylosis and Grade 1 spondylolisthesis (low back disability) is granted. REMANDED Service connection for a skin disorder, claimed as chronic skin furuncles and/or scars on entire body, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his low back disability is related to his active service. CONCLUSION OF LAW The criteria for service connection for DDD of the lumbar spine, with lumbar spondylosis and Grade 1 spondylolisthesis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1956 to April 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of Philippines. In June 2018, the Veteran testified at a Board video-conference hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. A February 2019 Board decision remanded this matter for further evidentiary development. In March 2021, the Board wrote the Veteran to inform him that the Veterans Law Judge who conducted the hearing in June 2018 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing. He was notified that if he did not respond within 30 days, the Board would assume that he did not wish to have another hearing. To date, no response to the March 2021 has been received. 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. § 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). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection for a lumbar spine disability is granted. The Veteran asserts that his current low back condition is related to an in-service back strain. Specifically, he contends that while on active duty as a jet mechanic, he had to lift heavy tools, parts, and tires which caused back pain. The Veteran's service treatment records (STRs) show no complaints of, treatment for, or diagnosis of a back disability. The Veteran states that he never sought treatment for his back problem while in service and instead, took aspirin for the pain at home. An April 2015 private medical treatment report diagnosed the Veteran with DDD of the lumbar spine, with lumbar spondylosis and Grade 1 spondylolisthesis. The report indicated the Veteran's condition began during active service as on-and-off low back pain which continued after discharge from active duty. The examiner also noted that the Veteran sought treatment for his back pain in June 2010 and March 2015. The examiner provided a positive medical nexus opinion stating that the Veteran's back conditions were all caused by the Veteran's active service. The private examiner noted that DDD is not a condition that develops overnight and is a gradual and slow process of progressive degeneration of the joints and bone structure. As such, the examiner concluded that the Veteran's strenuous work during active service gradually and progressively caused the DDD of the thoraco-lumbar spine. The Veteran was accorded a VA examination in August 2017. The examiner opined that it was less likely than not that the Veteran's low back condition was incurred in or caused by active service. The examiner explained that while X-ray evidence shows degenerative changes of the lumbar spine, the Veteran worked on aircrafts for 6 years after service. As such, the examiner found that the Veteran's post-service work likely caused the Veteran's low back condition. However, in February 2019, the Board found this rationale to be inadequate. The Board noted that the Veteran's post-service work did not involve intense physical labor and thus, remanded for an addendum opinion on this issue. Pursuant to the February 2019 Board remand, an addendum opinion was provided in March 2020. The examiner opined that it was less likely than not that the Veteran's low back condition was incurred in or caused by active service. The examiner acknowledged the Veteran's contention that most of his post-service work was supervisory and as a bench technician. The examiner referenced a study suggesting that prolonged bench work adds greater pressure on the lumbar spine complex. Considering the Veteran's age at the time of his alleged back injury, the nature of his post-service occupation, and the X-ray findings provided in the record, the examiner concluded that the Veteran's low back condition was not related to his active service. Based on the foregoing, the Board finds that service connection for a lumbar spine disability is warranted. Throughout the appeal period, the Veteran has reported experiencing symptoms of low back pain since service. The Board finds that the Veteran is competent to report on the onset and continuity of his low back symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Further, the April 2015 private medical report found that the Veteran's low back condition was directly related to his active service. Therefore, service connection for a low back disability is warranted in light of the Veteran's continuous reports of low back symptoms since service and the positive private nexus opinion. While the August 2017 and February 2019 VA examination reports resulted in unfavorable opinions as to a nexus between the Veteran's in-service back pain and his current low back condition, his statements of continuity of symptoms were disregarded. The Board therefore finds the opinions inadequate and do not afford them probative weight. Accordingly, upon a careful and thorough review of the record, the Board finds that the competent and credible evidence of record is in relative equipoise as to whether the Veteran's low back pain is related to his service. Resolving all reasonable doubt in the Veteran's favor, the claim for service connection for a low back condition, diagnosed as DDD of the lumbar spine, with lumbar spondylosis and Grade 1 spondylolisthesis, is granted. REASONS FOR REMAND Service connection for a skin disorder is remanded. The Veteran asserts that his skin disorder was aggravated beyond natural progression due to long-term exposure to jet fuel (benzene) while in active service. The Veteran's February 1956 enlistment examination does not indicate a skin condition. A May 1956 STR indicated that the Veteran sought treatment for a boil on his back. Then at his March 1960 separation examination, the Veteran reported a history of furuncles of the upper extremities and posterior neck during his childhood. He concedes that this condition pre-existed service. Pursuant to the February 2019 Board remand, the Veteran underwent a March 2020 VA examination to determine the nature and etiology of the Veteran's skin condition. The examiner opined that the Veteran's skin disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by the in-service event. The examiner stated that the multiple furuncles that were diagnosed during the Veteran's pre-enlistment were all resolved by the time he enlisted in service. The examiner stated that there were no reports of recurrent active furuncle during the whole duration in service. The examiner explained that a furuncle is an infection of the skin, which is termed as a boil in layman's terms. However, the March 2020 VA opinion did not consider the Veteran's May 1956 STR, which indicated that he sought treatment for a boil on his back. As such, a remand is necessary to clarify this matter. The matters are REMANDED for the following action: 1. Arrange for the claims file to be reviewed by the VA examiner who prepared the March 2020 VA skin conditions examination report (or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing an addendum opinion. If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner is requested to provide an opinion as to whether the Veteran's skin disability clearly and unmistakably (i.e., obviously, manifestly, or undebatably) pre-existed the Veteran's entry into service. If it is the examiner's opinion that the skin disability clearly and unmistakably pre-existed service, the examiner should offer a further opinion as to whether it is also clear and unmistakable that such disability was NOT aggravated (i.e. worsened beyond its natural progression) during service. In providing the above-referenced opinions, the examiner is requested to specifically address the significance of the Veteran's May 1956 STR indicating that he sought treatment for a boil on his back while in service. If the examiner finds that the skin disability either did not clearly and unmistakably preexist service, or was clearly and unmistakably not aggravated by service, the examiner is requested to offer an opinion as to whether the skin disability is at least as likely as not (i.e., whether it is 50 percent or more probable) related to an in-service injury, event, or disease, including skin contact with jet fuel as an aircraft mechanic. A complete medical rationale for all opinions expressed must be provided 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the remaining issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.