Citation Nr: 1338308	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  07-06 598A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1.  Entitlement to service connection for hypertension to include as secondary to service-connected ischemic heart disease or to service-connected posttraumatic stress disorder.  

2.  Entitlement to service connection for sleep apnea to include as secondary to service-connected ischemic heart disease or to service-connected posttraumatic stress disorder.  

3.  Entitlement to service connection for diabetes mellitus, type 2, due to exposure to certain herbicides.  

4.  Entitlement to service connection for skin disease to include chloracne as due to exposure to certain herbicides or to service-connected posttraumatic stress disorder.  

REPRESENTATION

Veteran represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD
J. Meawad, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1969 to May 1971.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in August 2003 and in March 2006 of a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In a rating decision August 2003, the RO denied service connection for a skin rash.  Within one year of the rating decision, the Veteran submitted additional evidence, including a private physician's statement in August 2004, relative to the etiology of the skin condition, which the Board considers as having been filed in connection with the original claim filed in February 2003, in accordance with 38 C.F.R. § 3.156(b).   

In a statement in November 2009, the Veteran canceled his hearing before a Veterans Law Judge.  

During the pendency of the appeal, in November 2011 the Veteran changed his accredited representative from the National Veterans Organization of America to the Texas Veterans Commission.  

In February 2012, the Board remanded the case for further development.  Since the requested development regarding the claim for service connection for diabetes mellitus has not been completed, further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).

The issue of service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  Hypertension was not affirmatively shown to have been present during service; hypertension was not manifested to a compensable degree within one year after the separation from service; hypertension is not related to an injury, disease, or event in service; and hypertension is not caused by or made worse by the service-connected ischemic heart disease or posttraumatic stress disorder.

2.  Sleep apnea was not affirmatively shown to have been present during service;  sleep apnea is not related to an injury, disease, or event in service; and sleep apnea is not caused by or made worse by the service-connected ischemic heart disease or posttraumatic stress disorder.

3.  A skin disease, neurodermatitis, was not affirmatively shown to be related to an injury, disease, or event in service, including exposure to certain herbicides, and a skin disease, neurodermatitis, is not caused by or made worse by the service-connected posttraumatic stress disorder.


CONCLUSIONS OF LAW

1.  The criteria for service connection for hypertension on a direct or presumptive basis or as secondary to the service-connected ischemic heart disease or posttraumatic stress disorder have not been met.  38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).

2.  The criteria for service connection for sleep apnea on a direct basis or as secondary to the service-connected ischemic heart disease or posttraumatic stress disorder have not been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013).




3.  The criteria for service connection for a skin disease, neurodermatitis, on a direct or on a presumptive basis as due to exposure to certain herbicides or as secondary to the service-connected posttraumatic stress disorder have not been met.  38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre- and post- adjudication VCAA notice by letters in February 2003, July 2004, June 2005, and May 2006.  


As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). 

To the extent that the VCAA notice came after the initial adjudication, the procedural defect was cured as after the RO provided content-complying VCAA notice, the claims were readjudicated as evidenced by the most recent supplemental statement of the case in December 2012.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). 

Duty to Assist

VA has made reasonable efforts to identify and obtain relevant records in support of the claim.  38 U.S.C.A. § 5103A.  The RO has obtained service records, VA records, and private medical records.  The Veteran was afforded a VA examination in March 2012.  As the report of the VA examination regarding service connection on a direct basis for hypertension, sleep apnea, and a skin disease and as secondary to a heart disease and posttraumatic stress disorder for sleep apnea is based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, the examination is adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).







In July 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) on the question of a causal relationship between the Veteran's hypertension and skin disease and his service-connected disabilities.  As the VHA expert considered the Veteran's medical history and described the disability in sufficient detail and provided a rationale to support the conclusions reached in the opinion, the Board finds that the VHA opinion is adequate to decide the claims of service connection for hypertension and skin disease.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical opinion must be based on consideration of the veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one).

The Veteran and his representative were provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument.  The Veteran has not responded and the Board is proceeding with appellate review.

The Veteran has expressed concern that not all of his post-service VA medical records were obtained.  The RO made repeated attempts to obtain the VA medical records from July 1969 to May 1979, but in February 2012 the VA San Antonio Medical Center responded that the records were no longer available.  Through supplemental statements of the case, the Veteran was notified of the efforts by the RO to obtain the missing VA medical records.  

As there is no indication of the existence of additional records to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation (service connection) for a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service). 

Generally, to establish entitlement to VA disability compensation, a Veteran must show: (1) a present disability; (2) an 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.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

The showing of a chronic disease in service requires 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 or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).




Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including hypertension, if manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).

For the purpose of the analysis, hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.  38 C.F.R. § 4.104, Diagnostic Code 7101, NOTE (1).  

Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a).

Exposure to certain herbicide agents, include one commonly referred to as Agent Orange, shall be presumed for any Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975).  38 U.S.C.A. § 1116(f).  

If a Veteran is presumably exposed to Agent Orange, there is a presumption of service connection for certain diseases if manifest to a compensable degree within specified periods, even if there is no record of such disease during service.  The list of diseases includes chloracne or other acneform disease consistent with chloracne, but no other skin disease.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).




VA's Secretary has determined that a presumption of service connection based on exposure to certain herbicides, Agent Orange, in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See 59 Fed. Reg. 341 (Jan. 4, 1994); 61 Fed. Reg. 41442 (Aug. 8, 1996); 64 Fed. Reg. 59232 (Nov. 2, 1999); 66 Fed. Reg. 2376 (Jan. 11, 2001); 67 Fed. Reg. 42600 (June 4, 2002); 68 Fed. Reg. 27630 (May 30, 2003); 72 Fed. Reg. 32395 (June 12, 2007); 75 Fed. Reg. 32540 (June 8, 2010); 75 Fed. Reg. 81332 (Dec. 27, 2010); and 77 Fed. Reg. 47924 (August 10, 2012). 

Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

As the Veteran served in combat, VA shall accept as sufficient proof of service connection, that is, whether a particular disease or injury was occurred in service, that is, what happened then, so long as the evidence is consistent with the circumstances, conditions or hardships of such service, the fact that there is no official record of such incurrence is of no consequence.  38 U.S.C.A. § 1154(b). 







The presumption under 38 U.S.C.A. § 1154(b) deals only with the question of whether a particular disease was occurred in service, that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent evidence is required.  Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible.  Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

Competency is distinguished from the credibility and weight of admissible evidence, which are also factual determinations.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance).  If the evidence is not credible, the evidence has no probative value.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

Evidence 

The Veteran served on active duty from July 1969 to May 1971, including service in Vietnam.  The Veteran's decorations include the Combat Infantryman's Badge. 


On entrance examination acne vulgaris with scarring on the back and shoulder was noted, but there is no other entry about the skin during the remainder of service.  The service treatment records contain no complaint, finding, history, symptom, treatment, or diagnosis of hypertension or sleep apnea.  On separation examination, the blood pressure reading was 134/90.

After service private records show that in February 1995 the Veteran was on blood pressure medication for hypertension.  The Veteran has had ongoing treatment for hypertension since then thereafter.  

In June 1996 in medical report, regarding chemical exposure at work, the Veteran denied having any atopic skin rashes.  

In January 1997, the diagnoses included a history of hypertension.  In neurological consultation report, the Veteran reported a history of hypertension for 3 years.  Following a sleep study in February 1997, the diagnosis was obstructive sleep apnea and sleep fragmentation.  

In October 1999, the assessment was allergic contact dermatitis from an elastic waistband.  In November 1999, the assessment was a penile rash.  In 2000, history included treatment for acne in February 1988.  In March 2002, it was noted that the Veteran had significant acne scarring without any active lesions.  

In a rating decision in August 2003, the RO granted service connection for posttraumatic stress disorder. 

In May 2004, after a complaint of chest pain, the Veteran had an abnormal stress test and subsequent catheterization showed coronary artery disease, requiring bypass surgery.  

In June 2004, the Veteran developed a papular rash on the extremities and ulcers on his face, which was assessed as neurodermatitis.


In August 2004, the Veteran's private physician stated that he had been treating the Veteran for 3 years for hypertension and for neurodermatitis and that hypertension more likely affected coronary artery disease and was probably influenced by posttraumatic stress disorder and that neurodermatitis was also influenced by posttraumatic stress disorder. 

In May 2005, the Veteran stated that he was treated in 1971 by VA for a skin problem, described as small bumps that itched when exposed to the sun.  The VA records are unavailable.  

In a decision in February 2012, the Board granted service connection for ischemic heart disease. 

In February 2012, on VA examination, the VA examiner expressed the opinion that sleep apnea was less likely than not incurred in or caused by service as the Veteran's sleep apnea was mostly due to the presence of anatomic risk factors such as obesity and abnormalities of the oropharynx.  The VA examiner stated that posttraumatic stress disorder was not included in the causes of or aggravating factors for sleep apnea according to the Merck Manual.  The VA examiner expressed the opinion that ischemic heart disease did not cause or aggravate sleep apnea as it did not contribute to any anatomical form of sleep apnea.  

The VA examiner also expressed the opinion that hypertension was less likely than not incurred in or caused by service.  The VA examiner concluded that the elevated blood pressure on separation was not a continuation of the present diagnosed hypertension.  The VA examiner also stated that hypertension was not caused by service-connected posttraumatic stress disorder or ischemic heart disease.  The VA examiner stated that if posttraumatic stress disorder caused hypertension, hypertension would have been manifested earlier than 25 years after service and ischemic heart disease does not produce hypertension, and ischemic heart disease and hypertension are independent diagnoses and are not a direct cause of each other.  



Regarding neurodermatitis, the Veteran described having a skin condition manifested by bleeding and pus prior to service and being sent to Vietnam.  The Veteran also stated that he had not been treated for a skin condition for many years.  The VA examiner stated that it was less likely than not that neurodermatitis was incurred in or caused by service and stated that the skin condition was not caused or aggravated by posttraumatic stress disorder.  

In July 2013, a VHA expert expressed the opinion that it was less likely than not that hypertension was caused or aggravated by service-connected posttraumatic stress disorder.  The VHA expert explained that when the Veteran returned from Vietnam, he exhibited symptoms of posttraumatic stress disorder even though he was not formally diagnosed until July 2003, and that treatment for hypertension began in 1995 and was not shown in service, and that hypertension was not diagnosed in proximity to the onset of posttraumatic stress disorder, and that the scientific literature showed no cause and effect relationship between hypertension and posttraumatic stress disorder.  

The VHA expert also stated that it was less likely than not that the neurodermatitis was caused or aggravated by the service-connected posttraumatic stress disorder, because neurodermatitis, a chronic and recurrent condition, had onset in June 2004 and the Veteran had posttraumatic stress disorder since the 1970s.  

The VHA expert stated that it was less likely than not that hypertension was caused or aggravated by service-connected coronary artery disease as treatment for hypertension began in 1995 and coronary artery disease was diagnosed in 2004.  The VHA expert explained that although coronary artery disease and hypertension have in common underlying atherosclerosis, the disabilities do not have a cause and effect relationship and coronary artery disease does not aggravate hypertension.  






Analysis

I.  Hypertension 

Service Connection on the Basis of the Service Treatment Records Alone

The service treatment records contain no complaint, finding, history, symptom, treatment, or diagnosis of hypertension.  On separation examination, the blood pressure reading was 134/90. 

On the basis of the service treatment records alone, hypertension was not affirmatively shown to have had onset during service and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. 

Direct and Presumptive Service Connection 

The theory of secondary service connection is separately addressed.

As for the elevated blood pressure reading, 134/90, in service, as a diastolic reading of 90 is indicative of but not dispositive of a hypertension, which is a chronic disease listed in 38 C.F.R. § 3.309(a), the theories of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply to hypertension.  See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (presumption of service connection for a chronic disease manifested during service applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases, 38 C.F.R. § 3.309(a)). 






For the showing of a chronic disease, such as hypertension, in service there is required a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b). 

The Veteran as a lay person is competent to identify an elevated blood pressure reading and the Veteran as a lay person is competent to identify a simple medical condition.  Jandreau, at 1377.  A simple medical condition is one capable of lay observation.  38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). 

While an elevated blood pressure reading is capable of lay observation, the presence of hypertension is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis of falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience.  38 C.F.R. § 3.3159; Jandreau, at 1377.  

Also hypertension is not the type of condition under case law that has been found to be capable of lay observation.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation); see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).


See Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer).

Applying the guidance of the current case law, hypertension is an internal disease process, analogous to diseases such as rheumatic fever, rather than flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg.  For this reason, hypertension is not the type of condition under case law that has been found to be capable of lay observation.

As hypertension is not capable of lay observation under Jandreau and by case law, hypertension is not a simple medical condition.  

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose hypertension.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). 

Where, as here, there is a question of the diagnosis of hypertension, which is not capable of lay observation under Jandreau or by case law, to the extent the Veteran's lay statements are offered as proof of the presence of hypertension in service, the Veteran's lay statements are not competent evidence, and the Veteran's lay statements are not admissible as evidence, that is, the Veteran's lay statements are not to be considered as competent evidence that hypertension as a chronic disease was present in service and the Veteran's lay evidence cannot be considered as evidence favorable to claim based on chronicity.

Also a single entry of a diastolic reading of 90 on separation examination lacks the combination of manifestations sufficient to identify hypertension and insufficient observation, one entry less than three weeks prior to separation from service, to establish that hypertension was present in service.  


As the Veteran's lay statements are not competent evidence that hypertension was present in service and as the service treatment records lack the documentation to identify hypertension during service, chronicity of hypertension in service is not adequately supported by the evidence of record.  

Whereas here the fact of chronicity in service is not adequately supported, service connection can be established by continuity of symptomatology.  Continuity of symptomatology requires: (1) that the condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology noted in service; and (3) evidence of a nexus between the present disability and the postservice symptomatology.  Walker, at 1335-36, 40 (overruling in part Barr v. Nicholson, 21 Vet. App. 303, and Savage v. Gober, 10 Vet. App. 488, 497 (1997) to extent that 38 C.F.R. § 3.303(b) was applied to diseases not listed in 38 C.F.R. § 3.309(a), while addressing the elements of continuity of symptomatology).  

As an elevated diastolic reading was noted in service, which is indicative of but not dispositive of hypertension, and as the Veteran is competent to describe elevated blood pressure readings, which is within the realm of personal experience, to the extent the Veteran asserts that he has had elevated blood pressure readings since service, the assertion is competent evidence of postservice continuity of symptomatology.

As for evidence of a nexus between the current hypertension and the postservice symptomatology, as the Veteran's assertion is an inference based on facts, it is an opinion rather than a statement of fact.  

The Veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 






As previously explained, hypertension is not a simple medical condition under Jandreau or by case law and any inference based on what is not personally observable cannot be competent lay evidence.  And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between hypertension and the continuity of symptoms. 

For these reasons, the Veteran lay opinion is not competent evidence of a causal relationship or nexus between hypertension and the postservice symptomatology.  

Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology.  As the evidence is not admissible, the Board need not reach the credibility of the evidence. 

Although service connection is not established under either 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b) on the basis of lay evidence, service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d).

As hypertension is not capable of lay observation, that is, a simple medical condition, under Jandreau or by case law, to the extent the Veteran's lay evidence is offered as proof of the presence of hypertension since service and before 1995, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim.  

Except the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional.  Jandreau, at 1377.  



Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

As for the Veteran reporting a contemporaneous medical diagnosis, after service, hypertension was first documented in 1995, more than 20 years after separation from service in 1971, well beyond the one year presumptive period for hypertension as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. 

As for symptoms that later support a diagnosis by a medical professional, the Veteran has not submitted any evidence from a medical professional and there is no evidence of record that hypertension is directly attributable to the elevated diastolic reading in service or otherwise related an injury, disease, or event in service.  

The only medical evidence of record as to direct service connection consists of the VA examiner's opinion that hypertension was less likely than not incurred in or caused by service and that the elevated blood pressure reading on separation was not a continuation of the present diagnosed hypertension.  

The opinion of the VA examiner constitutes competent and persuasive medical evidence that the current hypertension is not directly related to the elevated diastolic blood pressure reading and there is no favorable competent evidence that the current hypertension is related otherwise related to an injury, disease, or event in service.    

Secondary Service Connection

To prevail on a claim of secondary service connection, the record must show evidence of a current disability; evidence of a service-connected disability; and, evidence of causation or aggravation of the nonservice-connected disability by a service-connected disability, the so-called "nexus" requirement.  





As for evidence of a current disability, hypertension has been documented since 1995.  As for evidence of a service-connected disability, service connection has been granted for ischemic heart disease and for posttraumatic stress disorder.

The Veteran asserts that hypertension is caused by or aggravated by his service-connected ischemic heart disease or posttraumatic stress disorder. 

The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson, at 1316. 

The question is whether the Veteran as layperson is competent to offer an opinion on the nexus between hypertension and a service-connected disability. 

Whether hypertension is caused by or aggravated by a service-connected disability is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, because any nexus or causal relationship falls outside the realm of common knowledge of a lay person, that is, this question is not capable of lay observation without specialized education, training, or experience.  And no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to render an opinion on the causal relationship between hypertension and either service-connected ischemic heart disease or posttraumatic stress disorder.  To the extent the Veteran's lay statements are offered as evidence of a nexus, the Veteran's lay statements are not competent lay evidence and may not be considered as evidence favorable to the claim.  

Although there is no competent lay evidence of a nexus, there is medical evidence for and against the claim of secondary service connection. 

The favorable medical evidence consists of a private physician's statement that hypertension more likely affected coronary artery disease (ischemic heart disease) and was influenced by posttraumatic stress disorder.


The medical evidence against the claim consists of the VA examiner's opinion that hypertension was not caused by service-connected ischemic heart disease or posttraumatic stress disorder.  The VA examiner stated ischemic heart disease does not produce hypertension and ischemic heart disease and hypertension are independent diagnoses and are not a direct cause of each other.  The VA examiner stated that if posttraumatic stress disorder caused hypertension, hypertension would have been manifested earlier than 25 years after service.  

Also, the VHA expert stated that it was less likely than not that hypertension was caused or aggravated by service-connected coronary artery disease (ischemic heart disease) as treatment for hypertension began in 1995 and coronary artery disease (ischemic heart disease) was diagnosed in 2004.  The VHA expert explained that although coronary artery disease (ischemic heart disease) and hypertension have in common underlying atherosclerosis, the disabilities do not have a cause and effect relationship and coronary artery disease (ischemic heart disease) does not aggravate hypertension.  

The VHA expert expressed the opinion that it was less likely than not that hypertension was caused or aggravated by service-connected posttraumatic stress disorder.  The VHA expert explained that when the Veteran returned from Vietnam, he exhibited symptoms of posttraumatic stress disorder even though he was not formally diagnosed until July 2003, and that treatment for hypertension began in 1995 and was not shown in service, and that hypertension was not diagnosed in proximity to the onset of posttraumatic stress disorder, and that the scientific literature showed no cause and effect relationship between hypertension and posttraumatic stress disorder.  

With regard to medical opinions the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  





The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, whether the opinion is the product of reliable principles, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302   (2008).  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  

As for the favorable opinion, the private physician stated that hypertension more likely affected coronary artery disease and that hypertension influenced posttraumatic stress disorder.  The Board finds that the opinion is not persuasive evidence and the opinion has little probative value on the material issues of fact for secondary service connection, that is, causation and aggravation, because the opinion is conclusionary without a supporting rationale.  A mere conclusionary opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions.  Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007).   

The medical evidence against the claim consists of the VA examiner's opinion that hypertension was not caused by service-connected ischemic heart disease and posttraumatic stress disorder.  Also the VHA expert stated that it was less likely than not that hypertension was caused or aggravated by service-connected coronary artery disease (ischemic heart disease) or caused or aggravated by service-connected posttraumatic stress disorder.  The VA examiner and the VHA expert both provided a rationale for the conclusions reached in the opinions.  

The Board finds that the opinions of the VA examiner and of the VHA expert persuasive evidence, which opposes, rather than supports, the claim and outweighs the conclusionary opinion of the private physician. 




On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection for hypertension on the applicable theories of service connection, namely, direct, presumptive, and secondary service connection and the benefit-of-the doubt standard of proof does not apply.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 

II.  Sleep Apnea 

Service Connection on the Basis of the Service Treatment Records Alone

The service treatment records contain no complaint, finding, history, symptom, treatment, or diagnosis of sleep disturbance or of sleep apnea. 

On the basis of the service treatment records alone, sleep apnea was not affirmatively shown to have had onset during service and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted.

Direct and Presumptive Service Connection 

The theory of secondary service connection is separately addressed.

Sleep apnea is not a chronic disease listed under 38 C.F.R. § 3.309(a) and the theory of service connection based on chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted.  See Walker, 708 F.3d 1331 (presumption of service connection for chronic diseases manifested during service applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases, 38 C.F.R. § 3.309(a)).  



As sleep apnea is not a chronic disease under 38 C.F.R. § 3.309(a), there is no legal basis for presumptive service connection for sleep apnea as a chronic disease under 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307 and 3.309. 

As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), the Veteran as a lay person is competent to identify sleep disturbance, which is the realm of his personal experience and the Veteran as a lay person is competent to identify a simple medical condition.  Jandreau, at 1377.  A simple medical condition is one capable of lay observation.  38 C.F.R. § 3.159. 

While sleep disturbance is capable of lay observation, the presence of sleep apnea is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis of falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience.  38 C.F.R. § 3.159; Jandreau, at 1377.  

Also sleep apnea is not the type of condition under case law that has been found to be capable of lay observation.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation); see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer).

Applying the guidance of the current case law, sleep apnea is an internal disease process, analogous to diseases such as rheumatic fever, rather than flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg.  



For this reason, sleep apnea is not the type of condition under case law that has been found to be capable of lay observation.  As sleep apnea is not capable of lay observation under Jandreau and by case law, sleep apnea is not a simple medical condition.  

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose sleep apnea.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). 

Where, as here, there is a question of the diagnosis of sleep apnea, which is not capable of lay observation under Jandreau or by case law, to the extent the Veteran's lay statements are offered as proof of the presence of sleep apnea either in service or before 1997, the Veteran's lay statements are not competent evidence and the Veteran's lay statements are not admissible as evidence.

The Veteran as a lay person is also competent to report a contemporaneous medical diagnosis or to describe symptoms that later support a diagnosis by a medical professional.  Jandreau, at 1377.  

As for the Veteran reporting a contemporaneous medical diagnosis, sleep apnea by sleep study was first diagnosed in 1997, more than 25 years after separation from service in 1971.  As for symptoms that later support a diagnosis by a medical professional, the Veteran has not submitted any evidence from a medical professional and there is no evidence of record that sleep apnea is attributable to an injury, disease, or event in service.   

To the extent that sleep apnea may be attributable to an injury, disease, or event in service, the Veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson, at 1316.  



As previously explained, sleep apnea is not a simple medical condition under Jandreau or by case law and no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between sleep apnea and an injury, disease, or event in service. 

As the Veteran's lay evidence is not competent evidence, the Board looks to the medical evidence.  

The only medical evidence of record as to direct service connection consists of the VA examiner's opinion.  The VA examiner expressed the opinion that sleep apnea was mostly due to the presence of anatomic risk factors such as obesity and abnormalities of the oropharynx and not incurred in or caused by service.

The opinion of the VA examiner constitutes competent and persuasive medical evidence that sleep apnea is not directly related to an injury, disease, or event in service, which opposes rather than supports the claim and there is no contrary favorable medical opinion.

Secondary Service Connection

To prevail on a claim of secondary service connection, the record must show evidence of a current disability; evidence of a service-connected disability; and, evidence of causation or aggravation of the nonservice-connected disability by the service-connected disability, the so-called "nexus" requirement.  

Sleep apnea has been documented since 1997, and service connection has been granted for ischemic heart disease and posttraumatic stress disorder.

The Veteran asserts that sleep apnea is caused by or aggravated by his service-connected ischemic heart disease or posttraumatic stress disorder. 



The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson, at 1316. 

The question is whether the Veteran as layperson is competent to offer an opinion on the nexus between sleep apnea and a service-connected disability. 

Whether sleep apnea is caused by or aggravated by a service-connected disability is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, because any nexus or causal relationship falls outside the realm of common knowledge of a lay person, that is, this question is not capable of lay observation without specialized education, training, or experience.  And no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to render an opinion on the causal relationship between sleep apnea and either service-connected ischemic heart disease or posttraumatic stress disorder.  To the extent the Veteran's lay statements are offered as evidence of a nexus, the Veteran's lay statements are not competent lay evidence and may not be considered as evidence favorable to the claim.  

Although there is no competent lay evidence of a nexus, there is medical evidence to be considered.

On the question of causation or aggravation of the nonservice-connected sleep apnea by service-connected ischemic heart disease or by posttraumatic stress disorder, the only medical evidence as to secondary service connection consists of the VA examiner's opinion.  

The VA examiner expressed the opinion that ischemic heart disease did not cause or aggravate sleep apnea as heart disease did not contribute to any anatomical form of sleep apnea and that posttraumatic stress disorder was not included in the causes of or as an aggravating factor for sleep apnea according to a medical textbook, the Merck Manual.    



The opinion of the VA examiner constitutes competent and persuasive medical evidence that sleep apnea is not caused by or aggravated by either service-connected ischemic heart disease or posttraumatic stress disorder, which opposes rather than supports the claim and there is no contrary medical opinion.

On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection on a direct and secondary basis and the benefit-of-the doubt standard of proof does not apply.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.30 3and 3.310. 

III. Skin Disease 

Service Connection on the Basis of the Service Treatment Records 

On entrance examination acne vulgaris with scarring on the back and shoulder was noted, but there is no other entry about acne vulgaris during the remainder of service.  

The Veteran is presumed to be in sound condition when he entered into military service except for conditions noted on the entrance examination. 38 U.S.C.A. §1111; 38 C.F.R. § 3.304. 

As acne vulgaris was noted on entrance examination, acne vulgaris was a preexisting condition.  As a preexisting condition, the Veteran cannot claim direct service connection, but the Veteran may claim service connection by aggravation and the burden falls on the Veteran to establish aggravation.  Wagner v. Principi, 370 F.3d 1080, 1096 (Fed. Cir. 2004).

A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service.  




Aggravation may not be conceded where the disability underwent no increase in severity during service, on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. 

After service, history included treatment for acne in February 1988 and acne scarring without any active lesions was noted in 2002.  

In the absence of any complaint, finding, history, symptom, or treatment of acne vulgaris during service and in the light of evidence of acne scarring before and after service, the preexisting acne vulgaris that did not increase in severity during service.

As aggravation may not be conceded where the disability underwent no increase in severity during service, on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service, service connection by aggravation for acne vulgaris is not warranted. 

Direct and Presumptive Service Connection

The theories of secondary service connection and of exposure to Agent Orange are separately addressed.

The service treatment records contain no complaint, finding, history, symptom, treatment, or diagnosis of neurodermatitis.  On the basis of the service treatment records alone, neurodermatitis was not affirmatively shown to have had onset during service and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted.
Neurodermatitis is not a chronic disease listed under 38 C.F.R. § 3.309(a) and the theory of service connection based on chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted.  Walker, at 1337.  


As neurodermatitis is not a chronic disease under 38 C.F.R. § 3.309(a), there is no legal basis for presumptive service connection for neurodermatitis as a chronic disease under 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307 and 3.309. 

As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), the Veteran is competent to describe a skin rash.  See McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition manifested by boils, blotches, a rash, soreness, and itchiness is subject to lay observation).  

After service in October 1999, the assessment was allergic contact dermatitis from an elastic waistband.  In November 1999, the assessment was a penile rash.  In June 2004, the Veteran developed a papular rash on the extremities and ulcers on his face, which was assessed as neurodermatitis.  Persistent contact dermatitis can lead to neurodermatitis and sometimes neurodermatitis affects the genital area.  mayoclinic.com/health/neurodermatitis. 

As neurodermatitis encompasses both persistent contact dermatitis and a genital rash, the Board is referring to the current skin condition as neurodermatitis.  The Veteran asserts that his current skin condition began in service.  As the statement is an inference based on facts, it is an opinion rather than a statement of fact. 

The Veteran is competent to offer an opinion on a simple medical condition. Davidson, at 1316. 

While the Veteran is competent to describe a skin rash, the currently diagnosed neurodermatitis, itself, is not a condition under case law that have been found to be capable of lay observation and neurodermatitis is not a simple medical condition, because the condition cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation.





As neurodermatitis is not a condition that can be identified by the Veteran based on personal observation, any inference based on what is not personally observable cannot be competent lay evidence. 

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between neurodermatitis and any symptoms in service that the Veteran avers.  For this reason, the Veteran's lay opinion is not competent evidence favorable to the claim. 

The Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau, 1377. 

But no medical professional had diagnosed neurodermatitis before 2004 although there was evidence of skin problems since 1999 and no medical professional has diagnosed neurodermatitis on the basis of in-service symptoms averred by the Veteran. 

As the Veteran's statements are not competent evidence, the Board need not address credibility.

Medical Evidence

As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis or causation, the Board looks to the medical evidence. 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159.




The only medical evidence of record as to direct service connection consists of the VA examiner's opinion.  The VA examiner expressed the opinion that it was less likely than not that neurodermatitis was incurred in or caused by service, because there was no evidence of a skin condition until years after service. 

The opinion of the VA examiner constitutes competent and persuasive medical evidence that neurodermatitis is not directly related to an injury, disease, or event in service, which opposes rather than supports the claim and there is no contrary favorable medical opinion. 

Secondary Service Connection

Secondary service connection requires evidence of a current disability; evidence of a service-connected disability; and, evidence of causation or aggravation of the nonservice-connected disability by the service-connected disability, the so-called "nexus" requirement.  

As for evidence of a current skin disability, neurodermatitis, has been documented since 2004.  As for evidence of a service-connected disability, service connection has been granted for ischemic heart disease and for posttraumatic stress disorder.

The Veteran asserts that his skin condition is caused by or aggravated by service-connected posttraumatic stress disorder. 

The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson, at 1316. 

The question is whether the Veteran as layperson is competent to offer an opinion on the nexus between the current skin condition, neurodermatitis, and a service-connected disability. 




Whether the current skin condition, neurodermatitis, is caused by or aggravated by a service-connected disability is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, because any nexus or causal relationship falls outside the realm of common knowledge of a lay person, that is, this question is not capable of lay observation without specialized education, training, or experience.  

And no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to render an opinion on the causal relationship between the current skin condition, neurodermatitis, and posttraumatic stress disorder.  To the extent the Veteran's lay statements are offered as evidence of a nexus, the Veteran's lay statements are not competent lay evidence and may not be considered as evidence favorable to the claim.  

Although there is no competent lay evidence of a nexus, there is medical evidence for and against the claim of secondary service connection.

The favorable medical evidence consists of a private physician's statement that neurodermatitis was influenced by posttraumatic stress disorder.

The medical evidence against the claim consists of the opinion of a VHA expert that it was less likely than not that neurodermatitis was caused or aggravated by the service-connected posttraumatic stress disorder, because neurodermatitis succeeded the onset of posttraumatic stress disorder.  

With regard to medical opinions the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  Nieves-Rodriguez, at 302.  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed.  Gabrielson, at 40.  





As for the favorable opinion, the private physician stated that neurodermatitis was influenced by posttraumatic stress disorder.  The Board finds that the opinion is not persuasive evidence and the opinion has little probative value on the material issues of fact for secondary service connection, that is, causation and aggravation, because the opinion is conclusionary without a supporting rationale.  A mere conclusionary opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions.  Stefl, at 125.   

The persuasive medical evidence against the claim consists of the opinion of a VHA expert.  The VHA expert stated that it was less likely as not that neurodermatitis, a chronic and recurrent condition, was caused by or aggravated by service-connected posttraumatic stress disorder, because posttraumatic stress disorder preceded the onset of neurodermatitis.  

The Board finds that the opinion of the VHA expert is persuasive evidence, which opposes, rather than supports, the claim and outweighs the conclusionary opinion of the private physician. 

On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection for neurodermatitis on the applicable theories of service connection, namely, direct, presumptive, and secondary service connection and the benefit-of-the doubt standard of proof does not apply.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

Agent Orange 

The Veteran served in Vietnam during the Vietnam era, and it is presumed that he was exposed to Agent Orange.  But the current diagnosed neurodermatitis is not a disease subject to presumptive service connection for a Veteran, who served in Vietnam in the Vietnam era and service connection due to exposure to Agent Orange on a presumptive basis under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e) is not warranted. 

To the extent the Veteran has expressed the opinion that his skin condition is related to exposure to Agent Orange, the question of the relationship between a skin condition, neurodermatitis, and exposure to Agent Orange is not a simple medical condition as under 38 U.S.C.A. § 1116(b) and 38 C.F.R. § 1.17, the Secretary of VA is required by law to issue a presumption of service connection when sound medical and scientific evidence shows a positive association between a disease and exposure to Agent Orange. 

The Veteran as a lay person is not competent to offer an opinion on a matter that requires medical or scientific evidence and it is not argued or shown that the Veteran is otherwise qualified through specialized, education, training, or experience in medicine or science to offer an opinion on the relationship between a skin condition, neurodermatitis, and exposure to Agent Orange. 

Also there is no evidence of chloracne or acneform disease consistent with chloracne.  The Veteran did have preexisting acne vulgaris that was not aggravated by service.

And the Veteran has not submitted any medical or scientific evidence that suggests that neurodermatitis is actually caused by exposure to Agent Orange.  Combee, 1042.

On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection for neurodermatitis, applying the theories of direct service connection, presumptive service connection as a chronic disease, secondary service connection, and presumptive service connection as due to exposure to Agent Orange, and the benefit-of-the doubt standard of proof does not apply.  38  U.S.C.A. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

(The Order follows on the next page.).






ORDER

Service connection for hypertension to include as secondary to service-connected ischemic heart disease or to service-connected posttraumatic stress disorder is denied.  

Service connection for sleep apnea to include as secondary to service-connected ischemic heart disease or to service-connected posttraumatic stress disorder is denied.

Service connection for skin disease, neurodermatitis, to include as secondary to service-connected posttraumatic stress disorder and as due to exposure to certain herbicides, Agent Orange, is denied.  


REMAND

In its remand in February 2012, the Board directed that the Veteran be afforded a VA examination, including laboratory testing, to determine whether the Veteran has diabetes mellitus.  

In March 2012, on VA examination, the VA examiner found that the Veteran did not meet the criteria for diabetes mellitus.  The report of the VA examination does not include the laboratory test results used to support the finding. 

As the current record is insufficient to decide the claim, a reexamination under the duty to assist is needed.  



Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine:

a).  Whether the Veteran has diabetes mellitus, type 2.  

b).  Whether or not diabetes mellitus is found, the examination must include the laboratory test results to support the finding.  

The Veteran's file must be made available to the VA examiner.

2.  After the above development, adjudicate the claim.  If the benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs