Citation Nr: 21039993 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-15 495 DATE: July 2, 2021 ORDER Service connection for rheumatoid arthritis (RA) is granted. REMANDED Entitlement to service connection for ankylosing spondylitis. FINDINGS OF FACT 1. The Veteran served on active duty from January 1968 to March 1969, to include service in the Republic of Vietnam. 2. RA was incurred in service. Current RA has been related to in-service symptoms and exposure to herbicides. CONCLUSION OF LAW RA was incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge in October 2019. A transcript is associated with the claims file. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. 38 C.F.R. § 3.307(a)(6). RA is not a presumptive disability for herbicide exposure. Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the evidence, both VA and private medical records are positive for a diagnosis of RA. Therefore, the first element of service connection a current disorder is met. As to an in-service incurrence, service treatment records (STRs) are negative for any complaint, treatment, or diagnosis related to RA. In the March 1969 separation examination, the Veteran complained of painful joints and joint deformity which the clinician clarified to refer to ache in the left wrist below the carpal bone and a leg length discrepancy, right shorter than left, respectively. No other complaint, treatment, or diagnosis related to the joints were documented. However, the Veteran served in the Republic of Vietnam from August 1968 to March 1969 and is presumed to have been exposed to herbicides. As to a nexus, A March 2021 VA examiner documented no diagnosis of RA at the examination, but provided an opinion noting that RA was not presumptive to Agent Orange exposure and that there was no diagnosis of RA in service. However, the examiner did not provide a complete opinion with rationale as to direct service connection. In contrast, a private opinion by Dr. OO submitted in April 2021 indicated that it was reasonable to conclude that the Veteran's RA and its related complications were more likely than not linked at least in part to service. While noting the Veteran's familial history of RA, Dr. OO observed that the Veteran also had substantial exposure to herbicides in service, that research had shown a higher incidence of RA in Vietnamese exposed to dioxin, and that the Veteran had arthritis symptoms in service (i.e., complaints of painful joints, particularly wrist pain). Thus, the evidence is at least in equipoise and the appeal is granted. REASONS FOR REMAND With respect to ankylosing spondylitis, a remand is needed. The September 2020 remand asked that the clinician provide an opinion as to whether the ankylosing spondylitis was directly related to service, through either Agent Orange exposure or another cause. In the March 2021 opinion, the clinician stated that ankylosing spondylitis was not directly related to Agent Orange exposure as a presumptive illness. The clinician noted that ankylosing spondylitis was associated with a particular gene (HLA-B27) and that the genetic predisposition coupled with environmental factors would start an autoimmune reaction. The record reflects that the Veteran is HLA-B27 positive, but the clinician did not consider Agent Orange as an environmental factor. Moreover, while the clinician cited medical literature, the rationale relied on the other opinions in the file, and the lack of supporting rationale and evidence for those opinions. Therefore, the clinician's rationale appears to not be independent but a restatement and summary of other opinions in the file. For these reasons, the opinion is inadequate, and another opinion is needed. The matter is REMANDED for the following actions: 1. Undertake appropriate development to associate with the claims file any outstanding, relevant treatment records. 2. Direct the claims file to a clinician to address the etiology of ankylosing spondylitis. The clinician should identify the joints affected by ankylosing spondylitis and offer an opinion as to the following: Whether it is at least as likely as not (a 50 percent probability or more) that ankylosing spondylitis originated during service or is otherwise etiologically related to service, to include exposure to herbicides, such as Agent Orange. The rationale for the opinion expressed must also be provided. If the clinician is unable to provide any required opinion, he or she should explain why. If the clinician 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 clinician should identify the additional information that is needed. If the clinician cannot render an opinion without a clinical examination of the Veteran, such examination should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. M. Schaefer, 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.