Citation Nr: 22014545 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-18 284 DATE: March 14, 2022 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is denied. Entitlement to service connection for bilateral tinea pedis is denied. REMANDED Entitlement to service connection for tinea versicolor is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, it is at least as likely as not that his hypertension is etiologically linked to his active-duty service. 2. The evidence does not support that the Veteran's degenerative arthritis of the thoracolumbar spine is etiologically linked to his active-duty service. 3. The evidence does not support that the Veteran's bilateral tinea pedis is etiologically linked to his active-duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307; 3.309. 2. The criteria for service connection for degenerative arthritis of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.309. 3. The criteria for service connection for tinea pedis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 to October 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from May 2017 and September 2018 rating decisions issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in December 2020 to obtain clarifying medical opinions as to the nature and etiology of the Veteran's tinea pedis, tinea versicolor, hypertension, and back condition. VA opinions were associated with the file in January 2021 for tinea pedis and tinea versicolor, in February 2021 and March 2021 for hypertension, and in March 2021 for the Veteran's back condition. The Board finds the March 2021 opinions as to the Veteran's back condition and tinea pedis are adequate. Thus, the Board determines that there has been substantial compliance with the December 2020 remand directives, and further remand is not required as to those claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds the February 2021 and March 2021 opinions as to the etiology of the Veteran's hypertension is inadequate. However, in light of the full grant of benefits awarded herein, further remand is not required. The Board finds the January 2021 opinions as to the nature and etiology of the Veteran's tinea versicolor inadequate. To the extent that the requested development was not substantially complied with, that claims is not ready for appellate review and is addressed in the Remand portion of this decision. See Stegall v. West, supra. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, 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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Regarding service connection due to herbicide agent exposure, VA laws and regulations provide that if a veteran was exposed to certain herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for hypertension The Veteran contends that he has hypertension due to his exposure to certain herbicide agents during service. The Veteran is diagnosed with hypertension, thus meeting the first element of service connection. In-service herbicide agent exposure is presumed where a veteran has qualifying service in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. The Board notes that the Veteran has documented service in the Republic of Vietnam as evidenced by his receipt of awards such as the Vietnam Campaign Medal and Vietnam Service Medal. The Veteran's military personnel records confirm "boots on the ground" service in the Republic of Vietnam from April 1967 to April 1968. Thus, exposure to herbicides during service is presumed, and an inservice incurrence is established. As discussed above, 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision regarding herbicide agent exposure, and the list does not include hypertension. Thus, a connection between the Veteran's hypertension and herbicide agent exposure cannot be presumed, and service connection on a presumptive basis cannot be awarded. However, service connection for hypertension can still be established on a direct basis. As mentioned, a current diagnosis for hypertension is documented and the Veteran has presumed exposure to Agent Orange as an in-service incurrence for his hypertension. This leaves the issue of nexus. The Board acknowledges that a VA examiner provided a negative opinion as to direct service connection in February 2021. The examiner erroneously concluded the Veteran did not have documented exposure to any herbicide agents. Thus, the opinion is of no probative value. The examiner provided an addendum opinion in March 2021. However, the opinion lacks sufficient rationale as it is based on an inaccurate factual basis and fails to adequately address the recent findings of the National Academies of Sciences, Engineering and Medicine (NAS). The March 2021 examiner opined that it was less likely than not that the Veteran's current hypertension was incurred in or caused by service. The examiner found the Veteran's hypertension was more likely related to his 1998 kidney transplant. The examiner noted that hypertension is a very common complication associated with renal transplant. Although the examiner conceded strong research supported the association between exposure to Agent Orange and the development of hypertension, the examiner declined to make a statement about the association stating, "it would be difficult to say without speculation in the Veteran's particular case, due to his already pending circumstances". The Board notes private treatment records reveal the Veteran was being treated for high blood pressure as early April 1996, two years before his renal transplant. In light of evidence to the contrary, the examiner's finding that the Veteran's hypertension was more likely due to his kidney transplant is of diminished probative value. Moreover, the examiner presented no other reason to doubt the application of the NAS findings to this Veteran's particular case. The NAS recently opined that there is sufficient evidence of an association between exposure to herbicide agents used during the Vietnam War and hypertension. See The National Academies of Sciences, Engineering, and Medicine, Committee Review the Health Effects in Vietnam Veterans Exposure to Herbicides (Eleventh Biennial Update) (2018), available at https://www.nap.edu/catalog/25137/veterans-and-agent-orange-update-11-2018. Hypertension was moved to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category. The research showed that there is enough epidemiologic evidence to conclude that there is a positive association between herbicide agent exposure and hypertension in Vietnam Veterans. Id. This new research demonstrates a causal relationship between the Veteran's hypertension and exposure to an herbicide agent during service. Given the evidence of record as to a nexus for the Veteran's hypertension and his exposure to herbicides, the Board finds that there is relative equipoise as to this question. Thus, resolving all reasonable doubt in favor of the Veteran, a nexus has been established. As all three elements of service connection are established, service connection for hypertension is granted. 2. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine The Veteran contends that his degenerative arthritis of the spine was incurred in service. There is no dispute that the Veteran is diagnosed with degenerative arthritis of the spine. In several lay statements, the Veteran competently and credibly reported that he injured his back during service. The Veteran's service treatment records (STRs) reveal he was treated for back strain in August 1967. Therefore, the first and second elements of service connection, a current diagnosis and an in-service incurrence of an event, injury or disease, are established. Nevertheless, the claims must fail for lack of a nexus. Arthritis is included among the "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record adequately reflects that the Veteran was diagnosed with degenerative arthritis of the spine in June 2019. Thus, the Veteran's arthritis of the spine was not diagnosed in service or within one year from separation from service, and a nexus cannot be presumed under 38 C.F.R. §§ 3.307, 3.309. Although service connection is not warranted on a presumptive basis, the Board must consider whether service connection is warranted on any other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted, the first and second elements of service connection have been established. The Veteran was afforded a VA examination for back conditions in July 2019. The examiner opined that the Veteran's current back disability was less likely than not caused by or incurred in military service. The Board previously deemed this opinion inadequate as the diagnosis was unclear. The examiner diagnosed the Veteran with degenerative arthritis of the spine. However, the examiner's opinion and rationale referenced only lumbar spondylosis and lumbar arthropathy. An addendum opinion was provided in March 2021. First, the examiner clarified that lumbar spondylosis and lumbar arthropathy are features of degenerative arthritis of the spine rather than separate conditions. The examiner acknowledged the Veteran's ongoing complaints of back pain since service. However, the examiner noted that degenerative spine disease cannot be assumed to be the cause of back pain. The examiner explained that the absence of back spasms at the time of examination suggested that spinal arthritis was a more likely cause of the Veteran's pain than muscle strain. Nevertheless, there are myriad alternative causes that cannot be excluded, none of which would be related to the in-service strain injury. The examiner reasoned there was no support in the medical literature regarding a cause-and-effect nexus for lumbar strain injury with the subsequent development of degenerative arthritis of the spine. The examiner went on to explain that "the most compelling factor opposing a conclusion, with any significant probability, that degenerative arthritis of the spine (to include associated lumbar spondylosis and arthropathy) was due to strain injury is the prevalence of the condition in the general population." The examiner explained that lumbar spondylosis is a consequence of aging and is found to some degree in more than 80 percent of individuals over the age of 40. Therefore, even if the possibility of a cause-and-effect link between a service strain injury and degenerative arthritis of the thoracolumbar spine were conceded, "it would be statistically impossible to assign a probability of equal to or greater than 50 percent." The Board finds the examination opinion is well-supported, considers the Veteran's lay statements and is highly probative. The Board acknowledges the examiner found "no evidence in corroboration of a service injury to the back (strain or otherwise)" despite the existence of STRs confirming an in service back injury. However, the examiner conceded the Veteran strained his back in service based on review of prior rating decisions. The Court of Appeals for Veterans Claims has held, the mere fact that an examiner, private or VA, did not review the claims file does not render an examination inadequate, particularly if it can be shown by the content of the examination that the examiner is familiar with the claimant's medical history. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008); D'Aries v. Peake, 22 Vet.App. 97, 106 (2008). Although the Veteran is competent to identify observable symptoms such as pain and their onset, he is not competent to determine the diagnosis or etiology of his arthritis and its potential relationship to any observable symptoms. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). These questions are complicated and require greater knowledge of medicine and science than a lay person such as the Veteran possesses. Thus, his lay statements as to nexus or diagnosis are not competent evidence. In light of the negative nexus opinion and lack of a probative or competent positive opinion to contradict the negative evidence, there is no basis for a grant of service connection for the Veteran's back disability. In this case, the probative value of the Veteran's general assertions regarding the etiology of his condition is outweighed by the probative value of the specific, reasoned opinion of the physician who provided the March 2021 VA opinion. Because the evidence is persuasively against the claim, the claim of entitlement to service connection for degenerative arthritis of the thoracolumbar spine is denied. 3. Entitlement to service connection for bilateral tinea pedis The Veteran contends that he has bilateral tinea pedis as the result of his active-duty service. VA treatment records indicate that the Veteran was diagnosed with tinea pedis in 2018. Therefore, the first element of service connection, a current disability, has been met. The Veteran asserts that his tinea pedis was caused generally by his active-duty service but does not offer any evidence of a specific event, injury or disease in service that could be etiologically linked to his tinea pedis. The Veteran's service treatment records are silent as to any treatment or complaints of tinea pedis. Importantly, the Board notes there is no lay evidence of in-service symptoms. The record does not support, nor does the Veteran identify any symptoms or treatmentin service or contend that his tinea pedis had its onset during service. Moreover, his October 1968 separation examination was normal. Even so, the Veteran was afforded a VA examination for skin conditions in August 2018. The examiner opined that it was less likely than not that the Veteran's tinea pedis was incurred in service. The examination was found inadequate because the examiner did not address the relevant medical history in their rationale. Pursuant to the December 2020 Board remand, an addendum medical opinion was associated with the file. The examiner found there was no objective evidence of tinea pedis manifesting during active duty requiring continuous care and treatment. Therefore, the examiner opined, the Veteran's tinea pedis was not etiologically linked to his active-duty service. The examiner noted that the Veteran's separation examination was normal, and he was not diagnosed with tinea pedis until 2018. The Board finds this opinion to be of significant probative value given the factual accuracy of the rationale. Based on the analysis above, the Board finds that the preponderance of the evidence is against a finding that there is a nexus between the Veteran's active-duty service and his tinea pedis. Having failed to satisfy the criteria for direct service connection, the Veteran's claim must be denied. See 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d at 1167. REASONS FOR REMAND Entitlement to service connection for tinea versicolor is remanded. In the December 2020 remand, the Board requested an addendum VA opinion as to service connection for tinea versicolor that adequately addressed documented continuity of symptomatology. In January 2021, a VA examiner opined the tinea versicolor was not etiologically linked to the Veteran's active-duty service. The examiner found the Veteran's tinea versicolor was more likely due to immunosuppression and diabetes. Again, the examiner neglected to address the Veteran's lay complaints of observable symptoms beginning in service. Additionally, the examiner failed to adequately address STRs and VA treatment records documenting symptoms of a rash in the groin area beginning in 1968 long before the Veteran was immunosuppressed or diagnosed with diabetes. The Board cannot make a fully-informed decision on the issue of service connection for tinea versicolor because no VA examiner has adequately opined whether the condition is etiologically linked to the Veteran's in service diagnosis of tinea cruris or the ongoing complaints of and treatment for a groin rash thereafter. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding VA treatment records. 2. Thereafter, forward the entire claims file in electronic records and a copy of this remand to the January 2021 VA examiner. If that examiner is unavailable, then forward the claims file to a qualified examiner. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current tinea versicolor is related to his active-duty service, to include the in-service tinea cruris and explain why or why not. The examiner is asked to address the Veteran's STRs and VAMC records relating to a groin rash prior to immunosuppression as documented in January 1968, February 1968, March 1968, and April 1997. The Veteran's lay assertions as to onset and continuity and symptomatology, as well as the lay statements submitted on behalf of the Veteran contained in his claims file, should be recorded and considered. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain why. 3. Thereafter, the AOJ should ensure compliance with the above directives and readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.