Citation Nr: 21029253 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-41 462 DATE: May 13, 2021 ORDER Service connection for a skin disorder, to include a varicella zoster infection, is denied. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. FINDING OF FACT Clear and unmistakable evidence establishes that varicella zoster infection pre-existed the Veteran's entry to active duty service and was not aggravated beyond its natural progression therein. CONCLUSION OF LAW The criteria for service connection for a skin disorder, to include a varicella zoster infection, have not been met. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1986 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2014 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2018, the Board remanded the issues on appeal for additional development and they now return for further appellate review. 1. Entitlement to service connection for a skin disorder, to include a varicella zoster infection. The Veteran has sought service connection for a skin disorder, as reflected in the formal service connection claim received by VA in March 2014. However, other than his bare assertion of entitlement to service connection, he did not specify the nature of his claimed skin disorder. Furthermore, treatment records and an October 2019 VA examination are negative for a currently diagnosed skin disorder. However, given the evidence of record reflecting that the Veteran's experienced an episode of a varicella zoster infection in service, the Agency of Original Jurisdiction (AOJ) developed the Veteran's skin disorder claim as a claim seeking service connection for a varicella zoster infection. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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 the 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; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304 (b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Under 38 U.S.C. § 1153, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). While the Veteran did not report a history of contracting a herpes zoster infection, commonly referred to as chicken pox, as a child at the time of his entrance to service in July 1986 and the accompanying examination reflected that his skin was normal upon clinical evaluation, he developed a pruritic rash in May 1987, which was diagnosed as varicella zoster, a recurrence of the herpes zoster infection that he "swore" he experienced during his childhood. The Veteran was prescribed medications to treat his symptoms and was quarantined, and his subsequent in-service and post-service treatment records fail to demonstrate further reference recurrence or any residual impairment such in-service outbreak. The Veteran was afforded a VA dermatological examination in October 2019, at which time he reported experiencing a purulent rash. While no rash was evident at the time of the examination (and no other skin disorders were diagnosed), blood serologies obtained in conjunction with this examination revealed antibodies for varicella zoster. In November 2019, the VA examiner explained that an initial infection of varicella zoster in children results in herpes zoster (i.e. chicken pox), after which the virus retreats to the nerve cells where it remains dormant until some circumstances, such as stress or a weakened immune system, can cause the virus to reemerge, at which time the reinfection is referred to as shingles. The examiner then opined that, based on the totality of the evidence, to include the Veteran's adamant assertions in service that he had experienced an episode of herpes zoster during his childhood, the Veteran's varicella zoster infection clearly and unmistakably preexisted service as such was initially contracted prior to service. The examiner further opined that, due to the clinical evidence indicating that the Veteran had a recurrence of varicella zoster during service that resolved soon thereafter without sequelae, his preexisting varicella zoster was clearly and mistakably not aggravated beyond its natural progression during service. The Board notes that the Veteran's reported history of his initial contraction of varicella zoster has varied over time, as he reported during service that he first contracted the virus prior to service, but indicated during his recent VA examination that he initially contracted the virus during service. The Board notes that, given the passage of time, the Veteran's recent recollection of his initial contraction of the varicella zoster may not be accurate. As such, the Board finds that the Veteran's contemporaneous statements regarding the history of such infection recorded when he was experiencing an active infection during service, and during a time that was closer temporally to his childhood, are more reliable and therefore more probative than his recent recollection. Cucuras v. Sec'y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (finding no error in fact-finder's decision to give more weight contemporaneous medical records generated for treatment purposes than to contrary lay testimony, reasoning that "[m]edical records, in general, warrant consideration as trustworthy evidence, and that "oral testimony in conflict with contemporaneous documentary evidence deserves little weight"); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Likewise, the Board affords great probative weight to the November 2019 opinion concluding that the Veteran's varicella zoster clearly and unmistakably preexisted service and was not aggravated therein, as such considered all of the pertinent evidence of record, to include the statements of the Veteran and the relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the opinion contains clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there are no medical opinions to the contrary. Therefore, given that clear and unmistakable evidence establishes that varicella zoster infection pre-existed the Veteran's entry to active duty service and was not aggravated beyond its natural progression therein, the Board finds that service connection for a skin disorder, to include a varicella zoster infection, is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a skin disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a lumbar spine disorder. In the November 2018 remand, the Board requested new medical opinions addressing all pertinent medical evidence of record, to include lay statements addressing the onset of symptoms during service and the continuity of symptoms thereafter, as unfavorable opinions obtained in November 2014 did not consider such evidence and relied entirely on the lack of documented medical treatment since service as indicative of a lack of chronicity. However, the Board finds that the new medical opinions obtained pursuant to the Board's remand directives in November 2019 similarly fail to consider this evidence, summarily stating that "there is no evidence of continuity of symptoms from service to the present." As such, the new opinions are unresponsive to the Board's directives, these claims must be remanded to ensure compliance with the November 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). The matters are REMANDED for the following action: Obtain medical opinions from appropriate clinicians addressing the etiology of the Veteran's current cervical and lumbar spine disorders. After reviewing the Veteran's record, the clinician is asked to opine: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current cervical spine disorder had its onset in, or is otherwise related to his military service, to include his in-service spinal injury sustained in July 1989? (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current lumbar spine disorder had its onset in, or is otherwise related to his military service, to include his in-service spinal injury sustained in July 1989? In offering such opinions, the clinicians must consider and discuss the February 2015 statements from two of the Veteran's fellow service members that they recall him experiencing neck and back pain after his 1989 in-service injury; a January 2015 statement from the Veteran's spouse stating that she witnessed him experiencing ongoing low back pain since she met him in 1990; and the Veteran's reports that he was reticent to report and seek treatment for his ongoing neck and back pain during service, given the military culture that discouraged officers from doing so. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Northcutt, 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.