Citation Nr: 22013698 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-04 294 DATE: March 10, 2022 THE ISSUES 1. Entitlement to service connection for degenerative joint disease, lumbar strain, to include as secondary to service-connected bilateral knee disability. 2. Entitlement to service connection for skin condition/rash, to include as due to herbicide exposure. ORDER Entitlement to service connection for degenerative joint disease, lumbar strain, to include as secondary to service-connected bilateral knee disability is denied. REMANDED Entitlement to service connection for skin condition/rash, to include as due to herbicide exposure is remanded. FINDING OF FACT The Veteran's lumbar spine disability did not have onset during military service or within one year of discharge from service and is not shown to be related to his military service and is not secondary to or aggravated by any service-connected disability. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from August 1969 to May 1971. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs Regional Office (RO). The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in August 2018. These matters were previously before the Board in March 2019, December 2020, and most recently in November 2021 at which time they were remanded for further development. In the November 2021 Board decision, the Board also remanded the matter of service connection for a bilateral pes planus condition. In a subsequent December 2021 rating decision, the RO granted service connection for bilateral pes planus, therefore, that issue is no longer before the Board. With regards to the issue of service connection for a lumbar spine disability, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for degenerative joint disease, lumbar strain, to include as secondary to service-connected bilateral knee disability is denied. Generally, to establish service connection a Veteran must show: "(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 or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be also established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends that his claimed lower back disability is due to an in-service motor vehicle accident, or that alternatively, his claimed lower back disability has been aggravated by his service-connected osteoarthritis of both his right and left knees. Initially, the Board notes that the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine. See January 2021 VA Examination. Therefore, the Board finds that first element of service connection, a current disability, is met. Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran testified, and the service treatment records reflect, that he was involved in a motor vehicle accident during a rescue mission while in the Army. During the accident, the Veteran ended up in the wheel well of the jeep with his knees in the dashboard and his back stuck in that position. He had to be pulled out of the car and could not stand. The following morning, he was taken to the 71st Evacuation Hospital where he was evaluated and treated for muscle sprain with muscle relaxants. Therefore, the Board finds that the second element of service connection, an injury in service, is met. Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran testified at the August 2018 Board hearing that he has had lower back pain since the incident and that his low back has followed the normal progression of worsening following a motor vehicle accident: initial trauma, degenerative development, intermittent flare-ups and arthritis. The Veteran also reported that he was treated for back pain at the Delgado Community College Vocational Rehabilitation Center from in approximately 1975 and 1978. He was told that he had an existing back issue and if further degeneration occurred, surgery would be required. The physicians that the Veteran consulted with at the Center prescribed pain medication and adhere to the parameters and limits imposed by his back condition. The Veteran reported that the treatment records are no longer available because the Center closed in the late 1980s and that treatment records were destroyed after 5 years. The record reflects that the Veteran's low back strain improved to the baseline, but several years later, the pain returned. The record does not show that the Veteran sought treatment for his back from 1978 to 2015. The Veteran was afforded a VA examination for his back in June 2015. The examiner diagnosed him with lumbosacral strain and degenerative arthritis of the spine. As of the June 2015 VA examination, the Veteran was complaining of chronic back pain with a baseline of 1-2 out of 10, with occasional exacerbations related to some activities. At the time of the June 2015 VA examination, the Veteran did not report any stiffness, was not receiving treatment, including physical therapy and injections, for low back pain. The examiner opined that the Veteran's earlier low back pain condition had resolved and that based on the x-rays, the degenerative joint disease in his low back was compatible with the aging process. As such, the examiner found that the Veteran's lumbar back condition was less likely than not incurred in or caused by the back pain during service. The Veteran is service connected for osteoarthritis of both his right and left knees stemming from the motor vehicle accident in service. Because the June 2015 VA medical opinion only addressed direct service connection for the Veteran's back disability, the Board remanded the issue in its March 2019 decision in order to obtain an addendum VA medical opinion to determine whether the Veteran's back disability was aggravated by his service-connected osteoarthritis of the knees. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a new VA examination for his claimed lumbar spine disability in November 2019. The examiner confirmed a diagnosis of degenerative arthritis of the spine and a back sprain. The examiner found that the Veteran's low back disability was less likely than not proximately due to or the result of his service-connected bilateral knee disability because "knee surgery is generally not a causative factor for back pain." The examiner went on to note that the arthritis of the back "likely developed independently of the arthritis of the knees..." and that it "[was] likely age related." The Veteran submitted private ongoing treatment records for his lower back and bilateral knee disabilities. In order to obtain an opinion which considered these new treatment records, the RO sought an additional addendum opinion in April 2020. The examiner found that the Veteran's back disability was less likely than not related to his motor vehicle accident in service, stating that the new medical records did not affect or alter the rationale. However, neither examiner gave a clear opinion as to whether the Veteran's lumbar spine disability was at least as likely as not aggravated beyond its natural progression by his service-connected bilateral knee disability. The Board again remanded the issue in its December 2021 decision in order to obtain an addendum VA medical opinion to determine whether the Veteran's back disability was aggravated by his service-connected osteoarthritis of the knees. McLendon, 20 Vet. App. 79 (2006). The Veteran was afforded a new VA examination for his claimed lumbar spine disability in January 2021. The examiner confirmed a diagnosis of degenerative arthritis of the spine and a back sprain. The examiner found that the Veteran's low back disability was less likely than not proximately due to or the result of his service-connected bilateral knee disability and cited medical literature stating that unless the Veteran's gait had been altered, one joint disability would not cause injury in another joint. The examiner explained that there was no evidence the Veteran suffered from significant or prolonged periods of altered gait related to his knee disabilities. The examiner did not, however, address the theory of aggravation, as expressly directed by the Board in its December 2020 remand. Therefore, the Board remanded the matter in order to obtain such an addendum opinion in November 2021. Upon remand the Veteran was afforded such addendum opinions in December 2021 and January 2022. In the December 2021 VA opinion, the examiner indicated that the Veteran's claimed lumbar spine disability was less likely than not proximately due to or the result of the Veteran's service-connected bilateral knee condition. In coming to this conclusion, the examiner explained that the Veteran's current lumbar spine condition was more likely attributed to " repeated stress, trauma or injury to the lower back itself, as well as the aging process." In a January 2022 opinion, the examiner addressed the theory of aggravation, finding that the Veteran's back condition was less likely than not aggravated by his service-connected bilateral knee disability. In explanation, the examiner noted that "the knees are completely separate from the back and are not within close proximity to the back." The examiner reiterated that the more likely aggravating factors were age, weight gain, and repeated trauma. The examiner concluded that the Veteran's back condition "would likely worsen regardless if the Veteran had knee conditions or not." The Board finds that the June 2015 VA examination and opinion as it relates to the direct theory of entitlement is of significant probative value, as the VA examiner has the requisite medical expertise to render a diagnosis of degenerative arthritis of the spine and to render a determination as to etiology of the lumbar spine disabilities. Further, the VA examiner provided rationale for his opinion and based the opinion on the Veteran's history, lay statements, a review of the claims file, and examination of the Veteran. Additionally, while the Veteran is of the opinion that his lumbar spine disability is etiologically related to his service, the Board finds that the etiology of a degenerative disc disease falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. See Jandreau, 492 F.3d 1372, 1377 n.4. Similarly, the Board finds that the December 2021 and January 2022 VA opinions as they relate to the secondary and aggravation theories of entitlement are of significant probative value, as the VA examiner has the requisite medical expertise to render a diagnoses of degenerative arthritis of the spine and to render a determination as to etiology of the lumbar spine disabilities. Further, the VA examiner provided rationale for his opinion and based the opinion on the Veteran's history, lay statements, a review of the claims file. Additionally, while the Veteran is of the opinion that his lumbar spine disability is etiologically related to his service-connected bilateral knee disability, the Board finds that the etiology of a degenerative disc disease falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. See Jandreau, 492 F.3d 1372, 1377 n.4. Given the June 2015 VA examination and opinion, and the December 2021 and January 2022 VA opinions, the Board finds that the evidence does not support a finding that the Veteran has a lumbar spine disability that is related to an in-service disease or injury and that it is not related to his service-connected bilateral knee disability. Therefore, service connection for a lumbar spine disability is not warranted. 38 C.F.R. §§ 3.303; see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). As the persuasive weight of the evidence is against the Veteran's claim for service connection for a lumbar spine disability, the claim must be denied. 38 U.S.C. § 5107. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309(a) for arthritis and service connection based on a continuity of symptomatology under 38 C.F.R. § 3.303(b); however, the probative evidence does not indicate that the disability manifested within a year of separation of service or that it occurred continuously since discharge from service. While the Veteran testified that he experienced back pain since service, there is no evidence to show that the Veteran sought back treatment from 1978 to 2015. Additionally, the June 2015 VA examination and opinion which explained that x-ray evidence indicated that the Veteran's present back disability was likely age related, and unrelated to his pervious back injury which had resolved. To the extent the Veteran recollects that he continued to experience low back pain symptoms since separation from service, the Board finds that these recollections are not consistent with the contemporary evidence of record. To wit, the Veteran was found to have a clinically normal back during the May 1971 exit examination. Additionally, during that examination, the Veteran reported that since his last physical, his condition had not changed, and the examiner recorded the Veteran as saying that his condition was "good." See Maxson, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Therefore, presumptive service connection and service connection based on continuity of symptomatology are not warranted. REASONS FOR REMAND Entitlement to service connection for skin condition/rash, to include as due to herbicide exposure, is remanded. The Veteran's military personnel records confirm that he served in the Republic of Vietnam as part of the Military Police (MP). The Veteran testified that as part of the 560th MP Company in the Central Highlands of Vietnam, he was responsible for escorting convoys and that he was often under the airplanes that sprayed Agent Orange. The Veteran reported that his skin rashes started as "jungle rot" while he was serving in Vietnam. The Veteran said that the rashes were intermittent and that he did not go to sick call. He self-treated the rashes with cream that the army used for "jungle rot". The Veteran's service treatment records do not reflect complaints of or treatment for skin conditions in service. The Veteran reported that initially, following his separation from service, he frequently had acne type lesions and deeper cysts. The Veteran reported that his first sebaceous cyst developed shortly after he left service, and that he has since had approximately 5 cysts surgically removed from the back of the neck, back and chest. He stated that a few years after leaving the service he sought treatment from Dr. M, a dermatologist, for skin lesions. He reported that he had a basal cell carcinoma removed from the right side of my nose in the late 1970s and had a second basal cell carcinoma removed from his chest. He said that the medical evidence is no longer available because the medical facility did not retain records prior to 2005 for individuals who are no longer patients. The record contains evidence that the Veteran has had recurrent skin conditions, including subcutaneous cysts, actinic keratosis, stucco keratoses, atypical nevus, psoriasiform dermatitis, psoriasis, squamous cell carcinoma, folliculitis, and seborrheic keratoses since his separation from service. He has had hundreds of keratoses frozen off, 6 "blue light" treatments for his scalp and face, and has continued itching, peeling, scaling and sometimes splitting skin in the palms of his hands. The Veteran testified that he sought continuous treatment for skin conditions from Dr. R.B. since 2003. The medical evidence in the record confirms treatment from August 2013 through February 2016. Because the Veteran's service in the Republic of Vietnam is confirmed, his exposure to herbicide agents is conceded. In the March 2019 decision, the Board found that it could not make a fully-informed decision on the issue of service connection for skin condition and rashes without a medical opinion. McLendon, 20 Vet. App. 79. Upon remand, in pertinent part, the Board asked the VA examiner to opine whether the Veteran's skin condition/rash is at least as likely as not related to an in-service injury, event, or disease, including in-service herbicide agent exposure. The Veteran was afforded a new VA examination and opinion in October 2019. The VA examiner found diagnoses of basal cell carcinoma, psoriasis, and actinic keratoses. The VA examiner noted the Veteran was exposed to Agent Orange in service and opined that "it is certainly possible that the Agent Orange exposure enhanced his risk for skin cancer development." No further clarification was given. The Veteran was afforded an additional VA medical opinion in April 2020 by a separate examiner. The April 2020 VA examiner opined that the Veteran's skin conditions were less likely than not "due to or incurred in service in Vietnam and/or exposure to Agent Orange." The examiner explained that there was no evidence in the literature of a cause-and-effect relationship or a susceptibility relationship between Agent Orange exposure, and the Veteran's skin conditions. However, the examiner did not reconcile his opinion with that of the October 2019 examiner's, which suggested some relationship between Agent Orange exposure and the Veteran's current skin disabilities. Therefore, the Board found in its December 2021 remand that it was necessary to obtain an additional addendum opinion which considered the findings of the October 2019 examiner. The Veteran was afforded an addendum opinion in January 2021. The examiner rendered a negative nexus opinion and cited medical literature in support. While the Board found in its November 2021 decision that the opinion was otherwise adequate, again, the examiner did not address the findings of the October 2019 examiner. Hence, the Board remanded for an addendum opinion. Upon remand, the Veteran was afforded an addendum opinion in December 2021. The examiner rendered a negative nexus opinion and cited medical literature in support. While the Board finds the opinion to be otherwise adequate, again, the examiner did not address the findings of the October 2019 examiner. Therefore, the Board finds it necessary to obtain an additional addendum opinion which considers the findings of the October 2019 examiner. See Stegall, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the etiology of the Veteran's skin condition/rash. The examiner must opine whether the Veteran's skin condition/rash is at least as likely as not related to an in-service injury, event, or disease, including in-service herbicide agent exposure. The relevant documents in the record should be made available to the examiner who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. All findings, conclusions, and opinions must be supported by a clear rationale. If necessary, the examiner must reconcile his or her findings with the October 2019 VA examiner's opinion that it was possible that the Veteran's skin disabilities are related to his Agent Orange exposure in service. 2. If any benefit sought on appeal remains denied, provide an SSOC to the appellant and his representative. The SSOC must contain notice of all relevant actions taken on the appellant's claim, to include a summary of the evidence and applicable law and all versions of regulations considered pertinent to the issues currently on appeal. An appropriate time period for response must be allowed. Thereafter, the claims folder should be returned to the Board Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.