Citation Nr: 22010683 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 14-24 738A DATE: February 24, 2022 ORDER Entitlement to service connection for a skin condition is granted. Entitlement to service connection for a lumbar spine condition is denied. Entitlement to service connection for a cervical spine condition is denied. REMANDED Entitlement to service connection for iron deficiency anemia, to include as due to herbicide exposure and/or secondary to Crohn's disease is remanded. FINDINGS OF FACT 1. The Veteran's skin condition was caused by herbicide exposure during active-duty service. 2. The Veteran's cervical spine condition did not incur during active service, was not caused by active service, and did not manifest to a compensable degree within one year of separation from active duty. 3. The Veteran's lumbar spine condition did not incur during active service, was not caused by active service, and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin condition, to includer as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for a cervical spine condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a lumbar spine condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to May 1972, with service in the Republic of Vietnam. The Veteran testified before the Board of Veterans' Appeals (Board) in September 2016. The Board remanded the matters for further development in December 2015, February 2018, August 2019, and April 2021. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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 active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Alternately, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Certain chronic diseases, including degenerative arthritis, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a skin condition, to includer as due to herbicide exposure The Veteran asserted that his skin condition was caused by herbicide exposure during active service. The Board concludes that the Veteran has a current diagnosis of contact dermatitis caused by active military service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has verified service in the Republic of Vietnam, and is entitled to the presumption of herbicide exposure. The Veteran was most recently provided a VA nexus opinion in August 2021. The examiner determined the claimed condition was less likely than not caused by active service. The Board notes that in the rationale, the examiner noted that contact dermatitis may be triggered by herbicide exposure in the moment. Meaning that if exposed in 1978 the reaction would be in 1978; and in 2013, the contact dermatitis may be triggered by something else, not necessarily from herbicide only. The Board finds the standard used by the examiner exceeds the standard of "at least as likely as not." There is no requirement that herbicide exposure be the only cause of contact dermatitis. In viewing the rationale in a light most favorable to the Veteran and affording the Veteran the benefit of the doubt, the examiner's rationale finds herbicides to be one of, but not the only cause of the Veteran's contact dermatitis. The Veteran is entitled to the benefit of the doubt when the evidence is in "approximate" balance i.e., "nearly equal" but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed. Cir. 2021). As such, the Board concludes the evidence regarding a nexus between a skin disorder and service to be in equipoise, the benefit of the doubt is afforded to the Veteran, and service connection for a skin condition is granted in full. 2. Entitlement to service connection for cervical and lumbar spine conditions In May 2012, the Veteran claimed his cervical and lumbar spine conditions were caused by herbicide exposure. In the alternative, the Veteran asserts that his cervical and lumbar spine conditions were caused by carrying a rucksack during active-duty service. See October 2013 Notice of Disagreement. The Veteran's entrance examination in May 1969 and the separation examination in April 1972 were negative for conditions or complaints for the lumbar or cervical spine. In the Veteran's Social Security Administration (SSA) records, he reported that his approximately 30 years of work as a welder required a lot of physical bending, crouching, reaching, grabbing, stooping, and kneeling. The Veteran also had to regularly lift 50 70 lbs. During the April 2014 back VA examination, the Veteran reported having back pain since 1971. The Veteran was diagnosed with degenerative arthritis of the lumbar spine and lumbar radiculopathy. During the April 2014 neck VA examination, the Veteran reported having neck pain since the early 1970s. The examiner provided a negative nexus opinion because there was no evidence of injury or complaints for the neck or back during active-duty service. There was no diagnosis or treatment for many years after the Veteran's discharge, and, therefore, the examiner did not find the disorders were related to carrying a rucksack. The Veteran was provided with VA back and neck examinations in May 2018. The Veteran reported his neck bothered him once or twice during active duty, but he did not seek treatment. The examiner provided a negative nexus opinion because the service treatment records (STRs) failed to show any injuries or treatments for the back or neck in active duty. The post-service treatment records did not show evidence of chronicity or continuity of care for any spinal conditions. The examiner found the Veteran's years working as a welder/fabricator and normal aging were more than likely the cause of the spinal conditions. Additionally, there is no correlation between herbicide exposure and spinal conditions. The Veteran was most recently provided with addendum opinions in June 2021 and August 2021. The examiner provided a negative nexus opinion for the back conditions because the discs are 80 percent water, and they dry out over time due to age. Daily activities and sports cause tears in the outer core of the discs, and by age 60 more people have some degree of degeneration. The back conditions were more than likely caused by 32 years of wear and tear rather than 3 years of active service wear and tear. The examiner provided a negative nexus opinion for the neck conditions because there was no evidence of neck pain during service or directly after service in the STRs. Post-service records reflect that the Veteran worked as a welder/fabricator which involved physically demanding stooping, pulling, etc. The neck conditions were most likely due to age and years of post-service work as a welder. In November 2021, the Veteran's representative argued that the June 2021 and August 2021 VA back and neck opinions failed to substantially comply with previous remand directives. The Board notes that substantial rather than absolute compliance is required. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The VA examiner did compare the wear and tear of active service to the wear and tear of the Veteran's work as a welder for 30 years. There is no evidence of wear and tear in the Veteran's STRs, so the wear and tear mentioned by the examiner would reasonably account for the Veteran carrying the rucksack. Additionally, the Board does not view the Veteran's addendum examination in a vacuum, and the Veteran's assertion of injury from carrying a rucksack was addressed in the April 2014 VA examination. In the aggregate, the Board finds the VA opinions provided to the Veteran fully adequate for adjudication purposes. In November 2021, the Veteran's representative also argued the rationales provided by the examiner were inadequate because the examiner did not adequately explain why the post-service life produced more wear and tear than the in-service activities, and the examiner did not address the Veteran's "consistent" reports of cervical stress during active military service. The Board disagrees with the representative's view of the June 2021 nexus opinions and rationales. In reading the neck and back examinations together, the examiner explained the causes of degrative changes and how those applied to the Veteran specifically. The examiner also explained that the Veteran had extensive work history as a welder in the record. The Veteran's SSA records show the strenuous physical nature of the Veteran's work in his own words. The examiner, in applying their medical knowledge and training, determined that the work history in the Veteran's claim file and the Veteran's advanced age were the causes of the degenerative changes of the cervical and lumbar spines. The collective VA opinions show that the examiners reviewed the Veteran's entire record, and provided rationales to support the opinions. The record is negative for probative medical opinions indicating a positive nexus between the Veteran's cervical and lumbar spines and active service. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki,708 F.3d 1331 (Fed. Cir. 2012). The Board concludes that, while the Veteran has arthritic findings, there is no evidence showing chronicity in service and the Veteran has not provided evidence of continuity since service. The Board has every reason to believe the Veteran was offering a truthful account of his experiences to his clinicians in an attempt to receive appropriate medical care. However, arthritis did not manifest to a compensable degree within a presumptive period. There is no evidence in the record which shows diagnosed degenerative changes by May 1973, within a year of separation from active service. The earliest evidence of degenerative changes supported by radiographic imaging is located in April 2014 VA treatment records. This is nearly 32 years after separation from active service. The evidence supports finding that the Veteran's cervical and lumbar spine disorders were diagnosed over one year after separation, outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of cervical and lumbar pain since his period of service, such evidence was not provided until 2014. The first evidence of a spine disorder of record is located in February 2011 VA treatment records. The records is negative for evidence of a neck or back pain for approximately 40 years after the Veteran's separation. The Veteran does not possess the training or credentials necessary to provide a competent diagnosis in this case or to determine that these symptoms were manifestations of diagnosed disorders. The issues are medically complex, and require medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that the diagnosed disorders were not related to active-duty service to include herbicide exposure. Based on the analysis above, the Board must find that the evidence is not in approximate balance and that the evidence persuasively favors finding that the criteria for service connection have not been met. Accordingly, the benefit-of-the-doubt doctrine does not apply, and the claims of service connection for a cervical spine and lumbar spine are denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND The Veteran has asserted that he started feeling fatigued in 1971, the fatigue continued after separation in 1972, and he was diagnosed with low iron in 1974. In the August 2021 addendum opinion, the examiner provided a negative nexus opinion. The examiner noted the Veteran's reported history of anemia symptoms during active service, but the examiner found the Veteran's anemia was due to iron deficiency and not herbicide exposure. The Board finds an addendum opinion is necessary because the examiner did not address whether the Veteran's iron deficiency began during active duty based upon the lay medical history provided by the Veteran. The matters are REMANDED for the following action: Forward the claims file to a qualified VA medical professional to provide a VA addendum opinion as to the nature and etiology of the Veteran's anemia. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner is asked to provide an opinion as to whether any diagnosed anemia, and any associated iron deficiency, at least as likely as not (at least an approximate balance of positive and negative evidence) had its onset during or is otherwise related to any event or injury during active service. In answering all questions, please articulate the reasoning underpinning the conclusions. The examiner must consider the Veteran's lay evidence of continued symptoms of fatigue in 1971 and after separation in 1972. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.