Citation Nr: 1801849 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-28 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a chronic skin disorder, to include chloracne. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1968 to October 1970. He had service in the Republic of Vietnam from March 1969 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board reopened the chronic skin disorder service connection claim and remanded the issues on appeal for additional development in September 2016. The issues of entitlement to service connection for a chronic skin disorder, to include chloracne, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hypertension was not manifest during service or within one year of active service discharge; and, the preponderance of the evidence fails to establish that it is etiologically related to service. 2. Hepatitis C was not manifest during service; and, the preponderance of the evidence fails to establish that it is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The matter was Remanded in September 2016 for the purpose of securing updated treatment records, affording the Veteran a VA examination, and obtain a medical opinion with respect to that examination. VA treatment records have been obtained and a VA examination was conducted in November 2016 with a corresponding report. There was substantial compliance with the 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008)); Dyment v. West, 13 Vet. App. 141 (1999). Since the 2016 Remand, neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). There was substantial compliance with the prior remand directives as to the issues addressed in this decision. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.). Service Connection Claims Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). Pertinent case law also provides that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability, and that the veteran is required to meet his evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). Certain chronic diseases, including hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Diagnostic Code 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). "Hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104 , DC 7101, Note (1). The requirement of two or more blood pressure readings on at least three different days applies only to an initial diagnosis of hypertension diagnosis and not to the assignment of a disability rating. See Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Certain disorders, including ischemic heart disease, if manifest to a degree of 10 percent or more for an herbicide exposed veteran may be presumed service connected. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The term ischemic heart disease for presumptive service connection purposes under this law does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke, or any condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309, Note 2. The National Academy of Sciences (NAS) has reaffirmed its decision to place hypertension in "limited or suggestive evidence of an association" category. This category of association is defined to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Accordingly, VA has determined that the available evidence does not establish a positive association between herbicide exposure and hypertension that would warrant a presumption of service connection. 79 Fed. Reg. 20308-01 (Apr. 11, 2014). Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Hypertension is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2017). The Veteran contends that he has hypertension and hepatitis C as a result of active service, including as a result of service in the Republic of Vietnam and exposure to tactical herbicides. In statements and testimony in support of his claims he asserted that his hypertension developed as a result of Agent Orange exposure during service in Vietnam and that his hepatitis C developed in service, including as a result of tainted medical implements in August 1969 when incisions were made to drain boils on his legs at a field hospital in Vietnam. He also testified that he started using intravenous heroin and intranasal cocaine about one year after he left Vietnam. He stated that he did not use drugs in service, but that he had unprotected sex in service and was treated for a sexually transmitted disease in Vietnam. Service treatment records show that upon enlistment examination in August 1968 the Veteran noted a history of venereal disease in 1968. An August 1969 treatment report noted he underwent incision and drainage for boils on the left and right thighs. A September 1969 report noted urethral discharge following sexual contact and the examiner's impression was G.C. (gonorrhea). In his July 1970 report of medical history the Veteran denied having high or low blood pressure. His separation examination revealed normal clinical evaluations of the heart and vascular system. A blood pressure reading of 110/76 was provided. Service records show the Veteran participated in the Tet 1969 counter offensive. VA treatment records dated in October 1974 note the Veteran's complaint of occasional episodes of rapid tachycardia since 1971. An examination revealed blood pressure of 80/60 and an electrocardiogram (EKG) confirmed a diagnosis of Lown-Ganong-Levine syndrome. It was also noted that he had a positive VDRL (venereal disease research laboratory) test finding in June 1974 and that secondary syphilis was cured following treatment. On VA examination in June 1979 the Veteran denied having a history of hypertension and the examiner noted blood pressure readings in the left arm of 104/80, 102/78, and 102/72 and in the right arm of 102/62, 96/60, and 102/72. A report of hospitalization from October 1982 to November 1982 included a diagnosis of polydrug abuse and noted the Veteran reported his first heroin and intravenous cocaine use was in 1969 and that his last injections were in October 1982. A blood pressure finding of 140/80 was provided. A report of hospitalization from July 1986 to October 1986 noted both positive and negative laboratory results for hepatitis A and B. An April 2000 VA treatment report noted the Veteran had been provided a diagnosis of hepatitis C approximately one year earlier. It was noted he had risk factors including intravenous drug use from 1970 to 1972. A March 2001 report noted he was seen in the hepatitis C clinic and that he had denied Interferon treatment. A November 2003 report noted a diagnosis of hypertension that was diet-controlled. VA examination in May 2013 included a diagnosis of hepatitis C and noted the Veteran reported he was first provided a diagnosis in 1996. It was noted he had service in Vietnam and that he reported he had participated in combat activity. Risk factors were noted including transfusion of blood or blood products before 1992, intravenous drug use or intranasal cocaine use, high risk sexual activity, and other direct percutaneous exposure to blood (described as VA hospitalization several times from 1971 to 1996). The examiner summarized the pertinent evidence of record and found it was less likely that the Veteran's hepatitis C was incurred in or caused by an in-service injury, event, or illness. As rationale it was noted that it was impossible to relate hepatitis C to his service without resulting to mere speculation. The examiner stated that the provided etiology opinion was based upon the fact that the disease transmission was higher with intravenous drug usage and less risk for transmission with sexual activity. It was additionally noted that the Veteran had a history of venereal disease prior to enlistment which was identical to the risk from urethral discharge for which the Veteran's treatment was provided in service. VA examination in November 2016 included diagnoses of hypertension, with a date of diagnosis in 1974, and hepatitis C, with a date of diagnosis in 1997. The examiner noted that the claims file was reviewed and found that there were no records of hypertension or hepatitis C in service and that the disorders were less likely the result of active service. It was specifically noted that hypertension was less likely associated with or a result of possible exposure to herbicides or chemical agents as there was no direct pathophysiologic relationship between hypertension and herbicide exposure. Hepatitis C was less likely associated with or a result of possible exposure during medical treatment in August 1969 while serving in Vietnam as there was no record of a high risk area or a high risk procedure during active service. Based on the foregoing, the Board finds hypertension and hepatitis C were not manifest during service and that the preponderance of the evidence fails to establish that they are etiologically related to service. There is also no evidence that the Veteran's hypertension was manifest within one year of active service discharge nor can presumptive service connection be awarded based upon his likely tactical herbicide exposure during combat service in Vietnam. VA examiners have considered the Veteran's reported risk factors for contracting hepatitis C and have determined that it is likely that his hepatitis C is related to his active service. The Board finds that upon consideration of all the evidence that the May 2013 and November 2016 VA medical opinions are persuasive and are not contradicted by any other medical opinion. The examiners are shown to have reviewed the evidence of record and to have adequately considered the lay statements and reported symptom manifestations history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consideration has also been given to the Veteran's personal assertion that he has hypertension and hepatitis C as a result of active service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that any pertinent symptoms were observed during or soon after service. Nor is he shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise pertinent to the matters at issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for hypertension and hepatitis C is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against these claims. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for hepatitis C is denied. REMAND As to the issue remaining on appeal, the Board finds that further development is required prior to appellate review. Although the Veteran was provided a VA skin disorders examination in November 2016, the examiner did no address all of the matters requested in the September 2016 remand directive. Specifically, no opinion was provided as to whether the evidence demonstrated the Veteran had a chronic skin disorder, other that chloracne, including as due to a skin disorder shown during active service, due to credible evidence of skin disorder symptoms that had continued since active service, or due to herbicide exposure during service in Vietnam. A remand confers on a claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, additional development as to this matter is required prior to appellate review. The Board notes that the evidence includes conflicting opinions as to the appropriate diagnoses and etiology of the Veteran's present chronic skin disorders. The November 2016 VA examiner provided a diagnosis of chloracne, but found that there was no direct pathophysiologic relationship between chloracne and herbicide or chemical exposure. A July 2013 addendum opinion found there was no evidence of chloracne on examination in May 2013, but did not adequately address whether a chronic skin disorder demonstrated at any time during the appeal period could be etiologically linked either to skin disorders shown during active service, to credible evidence of skin disorder symptoms that had continued since active service, or to herbicide exposure during service in Vietnam. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, the Board finds another VA medical examination is required. Prior to any examination, up-to-date VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record. 2. Schedule the Veteran for an appropriate VA skin disorders examination, by an appropriate medical specialist if possible, for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that he has, currently or at any during the appeal: a) chloracne, to include as due to boils and rash shown during active service or due to his likely herbicide exposure during service in Vietnam, or b) any other chronic skin disorder as a result of service, to include as due to any skin disorders shown during active service, as due to credible evidence of skin disorder symptoms that have continued since active service, or as due to his likely herbicide exposure during service in Vietnam. The examiner must acknowledge review of the pertinent evidence of record. All necessary examinations, tests, and studies should be conducted. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. 3. Thereafter, the AOJ should address the issue remaining on appeal. If the benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs