Citation Nr: 1804962 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 17-29 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for basal cell carcinoma, to include as due to herbicide exposure. 2. Entitlement to service connection for glaucoma, to include as secondary to service-connected diabetes mellitus, type II. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Kass, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The Veteran served on active duty from November 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, and an April 2016 rating decision from the RO in St. Petersburg, Florida. Jurisdiction was subsequently transferred to the RO in Lincoln, Nebraska. The issue of entitlement to service connection for glaucoma and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's basal cell carcinoma is not related service, including as a result of herbicide exposure. 2. The Veteran's COPD is not related service, including as a result of herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for basal cell carcinoma, including as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for entitlement to service connection for COPD, including as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA satisfied the duty to notify in this appeal as to the claims adjudicated upon the merits at this time, and neither the Veteran nor his representative has asserted any error as to this duty. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). With regard to the duty to assist, the relevant records have been obtained. The Veteran was provided several VA examination regarding his claims in July 2015, and February 2016. The Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal as to service connection claims for basal cell carcinoma and COPD. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has a history of active service in the Republic of Vietnam during the Vietnam era. Veterans who 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 of non-exposure. See 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Therefore, he is presumed to have been exposed to herbicide agents, including Agent Orange, during military service. 38 C.F.R. § 3.307(a)(6)(i). VA regulations further provide that certain conditions are generally presumed to be associated with in-service herbicide exposure. 38 C.F.R. § 3.309(e). A. Basal Cell Carcinoma The Veteran is seeking service connection for his basal cell carcinoma. He contends his disability is related to herbicide exposure in Vietnam. The Veteran has a current diagnosis for basal cell carcinoma, and therefore, he satisfies the first element - a current diagnosis. The Veteran's service records confirm that he served in Vietnam during the Vietnam era. Thus, herbicide exposure is presumed, which satisfies the second element - an in-service incident. However, he cannot satisfy the third element - a nexus between his current disability and an in-service incident. The Board finds service connection is not warranted because there is no nexus. Private treatment records showed a diagnosis and treatment, but did not provide a nexus. In March 2015, the Veteran submitted two skin disease questionnaires by different doctors that provided a diagnosis but they did not address a link between service and his diagnosis. In July 2015, a VA examiner diagnosed basal cell carcinoma. He indicated that the Veteran completed treatment with surgery. In the examination report and opinion, the examiner noted a comprehensive review of the Veteran's service treatments records, VA and private post-service medical records, and the entire claims file. The examiner opined that there was not a nexus between the Veteran's service and the development of this disability, to include the presumed herbicide exposure. The examiner also addressed whether the disability is secondary to service-connected disability, but this is not a contention on appeal, and further the lay and medical evidence does not raise this on appeal. In May 2017, the Veteran stated that he was exposed to Agent Orange and Napalm, and it burned his skin. The Board acknowledges that the Veteran believes, and has continuously asserted, that his skin cancer is related to service. However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's skin cancer is related to herbicide exposure during his active service, the Board finds that evidence is not competent as the Veteran is not shown to have the required training to opine as to the etiology. Although the Veteran's exposure to herbicides exposure is presumed, the competent evidence does not link this disability to this exposure and this disability is not one of the presumptive disabilities. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board finds the July 2015 medical opinion, as a whole, highly probative, as the examiner had the benefit of reviewing the Veteran's entire claims file, which includes the Veteran's available STRs, post-service medical evidence, his medical history, and lay statements. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). In addition, the examiner's opinion relied on sufficient facts and provided rationale and sound reasoning for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board concludes that the evidence weighs against the existence of a nexus between the Veteran's basal cell carcinoma and service. B. Chronic Obstructive Pulmonary Disease (COPD) The Veteran contends his COPD is related to herbicide exposure in Vietnam. The Board notes that he satisfies the first element - a current disability, and the second element - an in-service incident. However, he cannot satisfy the third element - a nexus between his current disability and his in-service incident. The Board finds service connection is not warranted because there is no nexus between his COPD and his herbicide exposure. The record shows the Veteran smoked a pack a day for 50 years. See April 2015 treatment records. In December 2015, the Veteran reported that he was exposed to months of breathing smoke and chemicals in Vietnam. In February 2016, a VA examiner diagnosed COPD. The Veteran reported that his symptoms began in 1995 with shortness of breath, chronic respiratory infections, and a chronic cough. The examiner concluded the Veteran's COPD was less likely than not incurred in or caused by service because the Veteran had a history of smoking and he admitted that he was not exposed to chemicals during his career. Although the Veteran's representative has indicated that this assertion counters those statements previously of record regarding chemicals in service, the Board does not find a basis for questioning the accuracy of the statements made to the examiner. In providing the opinion, the examiner reviewed the record and this opinion was based on consideration of all the relevant and pertinent evidence of file. In May 2017, the Veteran stated that he was exposed to Agent Orange and Napalm, which burned his skin and made breathing difficult and painful. Although the Veteran's exposure to herbicides exposure is presumed, the competent evidence does not link this disability to this exposure and this disability is not one of the presumptive disabilities. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board has considered the Veteran's own statements made in support of his claim. However, he has not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to this specific issue, the etiology of his COPD, particularly as it relates to Agent Orange, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, service connection for COPD is denied. ORDER Service connection for basal cell carcinoma is denied. Service connection for COPD is denied. REMAND While the Board sincerely regrets the delay, the Veteran's claim for service connection for glaucoma is remanded for further development. The Veteran had a VA examination in August 2015. After review of the examination report, the Board finds that an additional opinion should be obtained. The examiner determined the Veteran's glaucoma was less likely than not caused by his service-connected diabetes mellitus because clinical evidence was not supportive of a strong association between the two conditions. However, the examiner cited a study that concluded there was an association between the two diseases. The Board finds an additional opinion is necessary to address the Veteran's contentions, and potentially link his disability is related to service or his service-connected disabilities. Regarding bilateral hearing, the Board finds that another examination with opinion is necessary. In the March 2016 opinion, the examiner indicated that there was no significant changes in hearing during service and that hearing loss occurred after service. In this opinion, the examiner does not indicate consideration of conversation of the in-service audiograms from ASA to ISO-ANSI standards. In this regard, one of the two November 1963 audiograms of record indicates a 40 decibels reading in the 4000 Hertz level of the right ear. Further, the examiner does not fully consider whether the post-service development of hearing loss was due acoustic trauma experienced therein. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ensure all outstanding VA records are associated with the claims file, specifically to include records since April 2017. 2. After completing the directive (1), the AOJ should return the claims file to the August 2015 VA examiner for an addendum opinion. The examiner is given discretion as to whether a full examination should be conducted. The examiner is asked whether it is as likely as not that the Veteran's glaucoma is related to service or was caused or aggravated by his service-connected diabetes mellitus. The examiner should address the following: A. Article titled "Open-angle glaucoma and diabetes: the Blue Mountains eye study, Australia" that was cited in the August 2015 VA examination report. B. Article titled "Diabetes Mellitus as a Risk Factor for Open-Angle Glaucoma: A Systematic Review and Meta-Analysis" by cited by the Veteran. A complete rationale for any opinion expressed should be included in the examination report. 3. After completing directive (1), schedule the Veteran for an additional VA audiological examination. If possible, this examination should be provided by a different examiner than the examiner who conducted the March 2016 examination. After review of the record, to include the audiograms in the service treatment records and consideration of converting these audiogram results from ASA to ISO-ANSI standards, the examiner should address the following: Is it as least as likely as not (50 percent or greater) that the Veteran's current bilateral hearing loss is due to service, to include any in-service acoustic trauma. In this regard, the rationale for the opinion should consider the audiograms of record as well as the Veteran's lay statements regarding acoustic trauma in service. 4. The AOJ should then review the obtained VA examination reports to ensure that the opinions contained therein are responsive to the questions posed. 5. After completion of the above and any other development deemed necessary, readjudicate the issues remaining on appeal. If any issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs