Citation Nr: 18142258 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-39 743 DATE: October 15, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for skin cancer, to include as secondary to herbicide agent exposure is denied. Entitlement to service connection for peripheral neuropathy of the left, lower extremity, to include as secondary to herbicide agent exposure is denied. Entitlement to service connection for a left knee disability, to include as secondary to peripheral neuropathy is denied. REMANDED Entitlement to service connection for a cardiovascular disability, to include as secondary to posttraumatic stress disorder (PTSD) or herbicide agent exposure is remanded. Entitlement to service connection for peptic ulcer disease, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer is remanded. FINDINGS OF FACT 1. Resolving the benefit of the doubt in favor of the Veteran, his bilateral hearing loss is at least as likely as not related to in-service noise exposure. 2. The Veteran’s current skin condition is not related to an event, injury, or disease in service, to include exposure to herbicides. 3. The Veteran’s peripheral neuropathy of the left, lower extremity is not related to an event, injury, or disease in service, to include exposure to herbicides. 4. Although the Veteran may have a left knee injury, the evidence does not indicate that it was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was incurred during the Veteran’s active duty service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. The criteria for service connection for skin cancer have not been met. 38 U.S.C. §§ 1101, 1131, 5102, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). 3. The criteria for service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1101, 1131, 5102, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). 4. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Navy from July 1967 to April 1971. Service Connection Establishing service connection generally requires (1) the existence of 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Sensorineural hearing loss and peripheral neuropathy are considered chronic, organic disease of the nervous system listed under 38 C.F.R. § 3.309(a). Organic diseases of the nervous system, may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2017). In order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin’s lymphoma, soft tissue sarcoma, Hodgkin’s disease, porphyria cutanea tarda (PCT), multiple myeloma, early onset peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson’s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e) (2017). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2017). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii) (2017). The Veteran’s military personnel records show that he received a navy unit commendation ribbon for Naval Support Activity in Da Nang, Republic of Vietnam. Records also include a list of all duty stations including a February 1969 line item, which show the Veteran was received for duty in Da Nang, Vietnam, for Naval Support Activity, until December 1969. Therefore, because the Veteran’s service involved actual duty in the Republic of Vietnam, he is presumed to have been exposed to herbicides in service. See 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). 1. Entitlement to service connection for bilateral hearing loss. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that his current bilateral hearing loss disability can be attributed to his exposure to loud noise during service. Review of his service treatment records (STR) does not show any complaints or diagnosis of hearing loss; his hearing was considered normal in his April 1971 separation exam. Review of his records shows his MOS as electrician’s mate, which had a moderate probability of noise exposure. VA treatment records show ongoing complaints of decreased hearing. On the authorized audiological evaluation in October 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 30 55 60 LEFT 15 15 25 60 90 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 in the left ear. The examiner noted that the whisper test completed at separation was not a valid measurement of hearing, as the tests are not sensitive to high frequency hearing loss. Ultimately, the examiner found that it would be difficult to determine if hearing loss or acoustic trauma occurred during service without a valid measure of hearing for comparison. Rather, it was likely/possible that aging, occupational, recreational noise exposure, and general health contributed to the Veteran’s hearing loss. The Court reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107 (b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). The Veteran has a moderate probability of in-service noise exposure and he is currently diagnosed with a type of hearing loss that is consistent with such in-service noise exposure but he did not undergo the type of testing that would have detected a sensorineural hearing loss upon his separation. The Board finds that reasonable doubt should be resolved in favor of the Veteran. Accordingly, the Board finds that service connection for bilateral hearing loss is warranted. 2. Entitlement to service connection for skin cancer, to include as secondary to herbicide agent exposure. The Veteran contends that he has a skin condition caused by exposure to Agent Orange during service. Specifically, he reported that after returning from Vietnam he began to experience skin lesions and was seen by a physician at a naval hospital, who told him that his condition was Agent Orange related. After requesting those records, VA received a response indicating no records were on file for the Veteran. The Veteran was asked to submit any records he had in his possession; no records were submitted. Service treatment records show the Veteran experienced widespread tinea versicolor on his chest, shoulders and back. However, his separation examination was negative for any skin condition. VA treatment records show complaints of rashes on the upper arms and a history of skin cancer, removed from his forearms and left cheek. He had a lesion on his left arm that had been there for years, that increased in size and often bled. He had various diagnoses including actinic keratosis, dermatitis in November 2015, and basal cell carcinoma, nodular in October 2013. He also underwent numerous treatments including shaving, liquid nitrogen, and excisions. He continued to be followed by VA dermatology; however, more recent records note there was no skin rash or lesion. The Veteran was afforded a VA skin examination in October 2014 and he reported a history of skin cancer; lesions were removed from his left forearm and other places on his body. He also noted that he was told by a naval doctor that his skin condition was caused by exposure to Agent Orange. On physical examination, the examiner noted that he had sun-damaged skin of the bilateral forearms, face, and scalp. There were no active lesions consistent with skin cancer. Ultimately, the examiner opined that the Veteran’s non-melanoma skin cancer was not incurred in or caused by service, to include Agent Orange exposure. There was no indication of skin cancer in service and epidemiological studies did not support a causal association between skin cancer and Agent Orange exposure. The examiner also noted: “There is no specific mention of photodamage in the service record. Photodamage is the result of life-time cumulative exposure to sunlight/UV radiation. It would be speculative to opine that the sun exposure during the veteran’s four years of active duty service was a greater or more significant than the remainder of his total life time non-service sun exposure.” Based on the foregoing, the Board finds that a preponderance of the evidence does not indicate the Veteran’s currently diagnosed skin conditions are etiologically related to service. Although exposure to herbicides has been conceded, skin cancer or non-specific lesions are not considered one of the disabilities associated with exposure to herbicide agents. This was confirmed by the October 2014 examiner, who stated that studies do not support a causal relationship between skin cancer and Agent Orange exposure. Therefore, presumptive service connection is not warranted. As there was no indication of skin cancer or any skin condition seen during and continued after service, direct service connection is not warranted. Although the Veteran has reported that he experienced skin lesions upon his return from Vietnam and was told that it was caused by exposure to Agent Orange, the evidence does not support this contention. There are no available records from the naval hospital where he reported that he was treated and the only report of a skin condition during service was diagnosed as tinea versicolor. The Veteran has not been shown to possess the medical training or experience to diagnose his skin condition or determine its etiology. Layno v. Brown, 6 Vet. App. 465, 470 (1994), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his lay statements regarding his condition are not considered probative. After review of the medical and lay evidence of record, the Board finds that any currently diagnosed skin condition is not related to the Veteran’s presumed exposure to herbicide agents during active service. The Board finds the October 2014 examination and opinion probative, which does not indicate any relationship between the Veteran’s current skin cancer and exposure to herbicides during service. Accordingly, service connection for skin cancer is not warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). 3. Entitlement to service connection for peripheral neuropathy of the left, lower extremity, to include as secondary to herbicide agent exposure. The Veteran contends that he has peripheral neuropathy as a result of exposure to Agent Orange during service. Specifically, he reported that upon returning from Vietnam, he began experiencing weakness and numbness in his left leg. He was seen by a physician who diagnosed him with peripheral neuropathy and related it to herbicide agent exposure. Available service treatment records do not show diagnosis or treatment for peripheral neuropathy or any related symptoms. His separation examination was normal. Post-service treatment records show he reported to a physician that he had constant numbness and the sensation of “pins and needles” from his ankle to his foot; he often experienced coldness and color changes in his leg. He had a nerve conduction study in 2008, from which he was told he had permanent nerve damage, but the cause was unknown. He was seen by a private neurologist in October 2015 and reported ongoing symptoms that began after returning from Vietnam. The neurologist conducted tests and studies which showed absent left, lower extremity sensory responses. In this regard, the Board notes that the Veteran is not entitled to service connection for peripheral neuropathy of the lower left extremity on a presumptive basis. There is no competent persuasive evidence that his diagnosed peripheral neuropathy first manifested during active service or within one year of service discharge; therefore, service connection is not warranted on a presumptive basis for a chronic disease of the nervous system. See 38 C.F.R. §§ 3.303 (a)-(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Likewise, although the Veteran’s service in Vietnam is documented, and therefore, his exposure to herbicides is presumed, there is no competent persuasive evidence that he had early-onset peripheral neuropathy that appeared anytime near his last exposure to herbicides which manifested to a compensable degree. See 38 C.F.R. § 3.309 (e), Note 2. Indeed, the evidence shows that his peripheral neuropathy appeared many years after separation from active service. Therefore, service connection is not warranted based upon the Veteran’s presumed exposure to herbicides during active service or on the basis of a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a), and 3.303(b). Notwithstanding the foregoing presumption provisions, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disability was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). Again, STRs do not show evidence of peripheral neuropathy of the lower left extremity in service. As noted above, the evidence shows that peripheral neuropathy was not diagnosed until approximately 2008. To the extent the Veteran relates his peripheral neuropathy to service (to include herbicide exposure), the Board finds that such is not competent evidence. The Board acknowledges that the Veteran is competent to report readily observable features or symptoms of an event in service. However, the evidence does not persuasively support the Veteran’s contention that he was treated for and diagnosed with peripheral neuropathy in service. He indicated that he was seen at the naval hospital in Jacksonville and a records request received a negative response. The Veteran was asked to submit any records he had in his possession; no records were submitted. His personnel records show he was transferred to the Jacksonville Naval Hospital and was there from February 16, 1971 to March 10, 1971. Service treatment records show that he had a hemorrhoidectomy at the Jacksonville hospital on February 18, 1971; no other condition was noted. His service treatment records document various conditions, symptom complaints, and procedures; however, there is no mention of peripheral neuropathy. The Veteran’s assertions of a link between his peripheral neuropathy of the lower left extremity to herbicide exposure while in service are not competent; such a linkage is a highly complex scientific and medical conclusion that is not readily lay observable. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 4. Entitlement to service connection for a left knee disability, to include as secondary to peripheral neuropathy. As noted above, secondary service connection requires a current disability, a service-connected disability and nexus between the two. Here, the Veteran experienced a fall that he contends was due to loss of feeling in his left leg as related to his peripheral neuropathy diagnosis. Following the fall, he was treated for a fracture and a steel rod was placed in his leg; since that time, he has reported pain and instability. However, as his claim for service connection for peripheral neuropathy has been denied, a claim for secondary service connection to that disability cannot prevail. Therefore, service connection for a left knee disability on a secondary basis is not warranted. As the Board finds that the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for a cardiovascular disability, to include as secondary to posttraumatic stress disorder (PTSD) or herbicide agent exposure is remanded. 2. Entitlement to service connection for a gastrointestinal condition, claimed as peptic ulcer disease, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer is remanded. The Board notes that VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. VA treatment records indicate the Veteran has current diagnoses of a heart condition, erectile dysfunction, and peptic ulcer disease. As noted above, the Board has found that the Veteran’s exposure to herbicide agents during service has been conceded. He is also currently service connected for prostate cancer and PTSD. Although the Veteran has current diagnoses and there is evidence showing he was exposed to herbicides during service, as well as already service connected PTSD and prostate cancer disabilities, there is insufficient medical evidence to decide the claims on appeal. As the Veteran has not been afforded VA examinations to determine the current nature and etiology of the claimed disabilities, he must be provided such an examination on remand. See McLendon, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of any heart condition, peptic ulcer disease, and erectile dysfunction. The electronic file and a copy of this remand must be reviewed in conjunction with the examination. For any diagnosed heart condition other than ischemic heart disease, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran’s current heart condition is caused OR aggravated by his already service connected PTSD. For any diagnosed peptic ulcer disease, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran’s current peptic ulcer disease is caused OR aggravated by his already service connected PTSD. For any diagnosed erectile dysfunction, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50% or greater) the Veteran’s current erectile dysfunction is caused OR aggravated by his already service connected prostate cancer. The examiner(s) should provide a complete explanation and rationale for any opinion proffered. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel