Citation Nr: 18148408 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-38 747 DATE: November 8, 2018 ORDER Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for skin cancer is remanded. FINDING OF FACT The Veteran’s hypertension was not incurred within a year of service, and is not otherwise the result of a disease or injury incurred in service. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1968 to October 1969. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With respect to the duty to assist in this case, the Veteran’s service treatment records (STRs), VA treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran and his representative have not made the regional office or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issue addressed in this decision, and have not alleged that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of this issue. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. Entitlement to service connection for hypertension Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be considered “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection will also be presumed for certain chronic diseases, including hypertension, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. The STRs show several blood pressure readings, with systolic pressure as high as 124, in July 1967, and diastolic pressure as high as 94, in January 1968. The record does not show that the Veteran was diagnosed with hypertension during service or within a year of service. July 2009 VA treatment records indicate that the Veteran had a diagnosis of hypertension, for which he took Lisinopril. September 2009 VA treatment records include hypertension, essential, in the Veteran’s medical history. Subsequent VA and private treatment records show ongoing treatment for hypertension without any opinion on etiology. The Veteran wrote in September 2015 that when he thought of what he witnessed working on the flight deck during service, it raised his blood pressure. While the Veteran has therefore made statements to the effect that his hypertension is related to service, the Board notes that he is not shown to have the training or expertise that would render him competent to make such a determination. Because the question of whether it is related to service is a medical question, his statements on etiology are therefore afforded little, if any, probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There are no competent opinions of record indicating any relationship between the Veteran’s hypertension and service. In addition, the post-service treatment records discussed above do not indicate any relationship between the Veteran’s hypertension and service. Furthermore, hypertension was not incurred within a year of service. Because the evidence preponderates against the claims of service connection for hypertension, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). In so finding, the Board acknowledges that the Veteran has not been afforded a VA examination in support of this claim, but there is not sufficient evidence in the claims file to trigger VA’s duty to do so. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA’s duty to provide an examination only triggered if the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event); Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). REASONS FOR REMAND 1. Entitlement to service connection for skin cancer is remanded Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran had an examination arranged by VA for skin cancer in March 2015 at which the examiner opined that skin cancer was less likely than not caused by diabetes. However, the Veteran has contended that he experiences skin cancer as a result of sun exposure in service and the March 2015 examiner did not provide an opinion on service connection on a direct basis, including from sun exposure. In addition, the examiner did not provide an opinion regarding whether the service-connected diabetes aggravated skin cancer. Therefore, a VA exam must be obtained before the claim can be decided on the merits, and the examiner must provide opinion on service connection on a direct and secondary basis that considers the current diagnoses. The RO should also attempt to obtain updated VA treatment records while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain VA treatment records from July 2018 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any outstanding private treatment records. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of his skin cancer. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin cancer was incurred in service or is otherwise related to service, including in-service sun exposure. The examiner must also provide an opinion regarding whether the skin cancer is at least as likely as not (50 percent or greater probability) (1) proximately due to type II diabetes mellitus, or (2) has been aggravated beyond its natural progression by type II diabetes mellitus. The term ‘at least as likely as not’ does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The reviewer must include in the medical report the rationale for any conclusions expressed, to include descriptions of the medical processes involved and citation to relevant medical literature/treatise as necessary. A report containing unsupported/unexplained conclusions will be returned as inadequate. If the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel