Citation Nr: 22014702 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-17 841 DATE: March 14, 2022 ORDER Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a respiratory disability is granted. Entitlement to service connection for a skin disability is granted. FINDINGS OF FACT 1. The evidence of record supports finding that the Veteran's cervical spine disability occurred in, or is the result of, his period of active duty service. 2. The evidence of record supports finding that the Veteran's right knee disability occurred in, or is the result of, his period of active duty service. 3. The evidence of record supports finding that the Veteran's left knee disability occurred in, or is the result of, his period of active duty service. 4. The evidence of record supports finding that the Veteran's skin disability occurred in, or is the result of, his period of active duty service. 5. The Veteran clearly and unmistakably had preexisting asthmawhich was not noted upon enlistment into servicethat clearly and unmistakably was aggravated by service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for a skin disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for entitlement to service connection for asthma are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1994 to June 1997 and October 1998 to April 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. A Board hearing was conducted, and a transcript of this hearing is contained within the electronic claims file. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1380 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for a cervical spine, bilateral knee, and skin disability is granted. The Veteran contends that at the same time he experienced whiplash and injured his back (a condition for which he currently is service connected), he also injured his neck but did not receive any care or treatment for it. April 6, 2021, Hr'g Tr. (Tr.) at 1415. Concerning his knees, he contends that the general rigors of service have caused his current disability. Id. at 20. As to his skin, he alleges that, ever since he received an anthrax vaccine, he began experiencing dermatitis and frequently would be given creams and lotions; this skin condition has persisted into the present. Id. at 911. Service treatment records (STRs) do not contain complaints of, treatment for, or diagnosis of any cervical spine or bilateral knee disabilities; however, it does show multiple entries for acne on the Veteran's chest and back. As early as July 2011, VA medical center (VAMC) records show that the Veteran has a diagnosis of dermatitis for which he is prescribed hydrocortisone cream. A February 2014 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran reported that he began experiencing recurring neck pain around 1995 with repetitive high-impact physical training exercises and heavy lifting activities. The Veteran was diagnosed with a cervical strain. In opining that the Veteran's cervical spine disability was not related to service, the examiner provided the following rationale: "There are no military service medical treatment records documenting any cervical spine injuries/treatment. It is less likely than not that the claimant's current cervical strain is secondary to the VA established lumbar strain. The two conditions are unrelated. Lumbar strain does not lead to cervical strain." At the same time, the Veteran also was afforded a knee examination. The Veteran denied any specific in-service injury, but stated that, since around 1995, he began experiencing bilateral knee pain. The examiner diagnosed the Veteran with bilateral tendinitis. In opining that the Veteran's bilateral knee disability was not related to service, the examiner provided the following rationale: It is less likely than not that the claimant's current knees tendinitis is related to remote knee strains he may have incurred during his naval service. There are no military service medical treatment records documenting any knees injuries/treatment. It is less likely than not that the claimant's current bilateral knee tendonitis is secondary to the claimant's VA established lumbar strain diagnosis. The two conditions are unrelated. Gait was normal on exam. At his hearing, the Veteran confirmed that he has received treatment for pain in his neck and knees since 1994 or 1995. Tr. at 16, 22. The Board finds that the elements of service connection for a cervical spine and bilateral knee disabilities are met. The record verifies that he has current disabilities of both his neck and knees. He has testified competently and credibly that he experienced pain in these joints since service into the present. Concerning a nexus, lay individuals are competentin certain, limited situationsto provide the Board with the requisite evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 137677 (Fed. Cir. 2007). This is one such case. As just noted, the Board finds the Veteran credible in asserting that he experienced pain since service into the present. Furthermore, the Board otherwise finds that the medical examinations of record are inadequate and cannot be considered for adjudication purposes. The rationale for both opinions is premised on the fact that there are no documented in-service injuries to the Veteran's neck or knees. But such opinions have long been held to be inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (discussing that a medical opinion solely premised on a lack of an in-service injury is inadequate). Additionally, the examiner fails to consider the Veteran's lay statements that he has experienced symptoms since service into the present; that defect also is grounds to find these examinations inadequate. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) ("The examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion."). Therefore, all three elements of service connection have been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). As to the skin disability, the Board also finds that service connection is warranted. The Veteran currently has been diagnosed with dermatitis. There are multiple entries in his STRs that he was treated for acne and rashes during service, and the Veteran competently and credibly has testified that these issues have persisted since service into the present, establishing a nexus. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 137677. Because the Veteran never has been provided an examination for this condition, there is no other medical evidence to contradict the Veteran's testimony. Thus, the elements of service connection for this claim likewise have been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record supports the Veteran's claim for entitlement to service connection for a cervical spine, bilateral knee, and skin disabilities, his appeals on these issues are granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). 2. Entitlement to service connection for a respiratory disability is remanded. For this claim, the Veteran argues that, while stationed in Japan, he worked around wood and concrete dust, as well as other chemicals. Tr. at 3. While he states that he always wore his proactive gear, id., he began noticing breathing problems between 1999 and 2000. Id. at 4. He also indicated to the undersigned Acting Veterans Law Judge (AVLJ) that he was concerned about possible asbestos exposure. Id. at 8. When asked by the undersigned if the Veteran ever had any preexisting issues with his breathing, the Veteran replied "No." Id. No enlistment medical examination shows any preexisting respiratory disability. On a March 2001 Report of Medical Assessment, however, the Veteran noted that he was concerned about possible asbestos exposure. On that same form, he also noted that he previously was diagnosed by a doctor with asthma at age eight but that it had resolved by age fourteen. A February 2014 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with both asthma and restrictive lung disease. When asked if these conditions were related to service, the VA examiner stated the following: The claimant's childhood asthma is currently in remission (asymptomatic), and it pre-existed military service, and is therefore not secondary to service or to asbestos exposure. His Asthma pre-dates his military experience and is a life-long medical condition, which can have periods of remission. However it is at least as likely as not that the claimant's pre-existing Asthma (from childhood) was aggravated by various triggers he was exposed to during his military service. There are at least 2-3 military service medical records documenting the claimant's recurring respiratory symptoms, with diagnosed of acute bronchitis and exercise-induced Asthma. The claimant's current diagnosis of restrictive lung disease is less likely than not related to active military service or asbestos exposure. There is insufficient evidence in the medical records to support a connection. His routine chest films and B-reading films do not document any pulmonary interstitial or pleural pathology. His PFT, (which is not a very sensitive test to begin with), indicates only a restrictive defect on 2/7/2014. The record raises the question of whether the Veteran had a preexisting condition prior to military service. Thus, the Board must discuss the principles of soundness and aggravation. "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004) A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted; an indication of past disorder or disability by a veteran on a report of medical history is not enough to prevent the presumption of soundness from attaching. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). If the Veteran is sound upon entry, the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any 'increase in disability [was] due to the natural progress of the' preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F. 3d at 1096 (citing 38 C.F.R. § 3.322). As noted above, there is no enlistment examination that documents any preexisting respiratory condition, so the Veteran is presumed sound upon entry into service. See 38 U.S.C. § 1111; id.; 38 C.F.R. § 3.304(b)(1). That, however, does not end the inquiry. The burden now shifts to VA to establish, by clear and unmistakable evidence, that the Veteran's condition both preexisted service and was not aggravated during service. While the Veteran has testified that he never had any preexisting respiratory condition, Tr. at 8, he previously admitted in his STRs that he was diagnosed with childhood asthma. Even though he believes his asthma resolved by age fourteen, asthma is a chronic condition for which there is no cure. Thus, the Board finds that the Veteran's admission that he was diagnosed with asthma prior to service satisfies the clear-and-unmistakable evidence requirement to show preexistence. See Wagner, 370 F. 3d at 1096. VA cannot, however, satisfy the second prong of the inquiry. As the February 2014 examiner noted, the Veteran's asthma was aggravated by service, as evidenced by various STR entries showing exercise-induced respiratory symptoms. Because VA is unable to rebut fully the presumption of soundness, the Veteran's claimdespite having a preexisting conditionremains one for service connection, and the Board finds that it was aggravated beyond its natural progression, entitling him to service-connection benefits. See id. Because the evidence of record supports the Veteran's claim for entitlement to service connection for asthma, his appeal on this issue is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.