Citation Nr: 18160786 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-09 457 DATE: December 27, 2018 ORDER Entitlement to service connection for left leg skin cancer, to include Bowen’s disease, squamous cell carcinoma, and actinic keratosis, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. Entitlement to service connection for epilepsy, to include as due to herbicide exposure, is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam Era; thus his exposure to herbicides is presumed. 2. Skin cancer, Bowen’s disease, squamous cell carcinoma, and actinic keratosis are not among the disabilities for which presumptive service connection for herbicide exposure is warranted. 3. Skin cancer, to include Bowen’s disease, squamous cell carcinoma, and actinic keratosis, did not manifest in service, or to a compensable degree within one year after the Veteran’s separation from service, and there is no probative evidence otherwise linking the Veteran’s skin cancer to service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for skin cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1968 to June 1971, to include service in the Republic of Vietnam during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in January 2013. The Veteran perfected an appeal. See February 2013 Notice of Disagreement (NOD); February 2016 Statement of the Case (SOC); March 2016 VA Form-9. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131 (West 2012); 38 C.F.R. 3.303 (a) (2017). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113 (b) (West 2012); 38 C.F.R. § 3.303 (d). In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Left Leg Skin Cancer The Veteran contends that he incurred skin cancer on his left leg as a result of herbicide exposure during service in Vietnam. Factual Background The Veteran's service records show that he served in the Republic of Vietnam from July 1970 to June 1971; thus, he is presumed to have been exposed to Agent Orange or other herbicide agents. See 38 C.F.R. § 3.307 (a)(6)(iii). Service treatment records document no complaints, treatment, or diagnosis of a skin condition. Post-service treatment records document that the Veteran was seen in April 2012 with complaints of a lesion on his left lateral calf which had been present for several years. The lesion did not itch, and was noted to have been treated with topical steroids and antifungals without relief. The Veteran requested to be checked for skin cancer and a shave biopsy was conducted. See VA Treatment Records. The Veteran was diagnosed with Bowen’s disease; squamous cell carcinoma and actinic keratosis were also noted as active problems. A June 2012 dermatology clinic treatment memo notes that the Veteran had been using Aldara for three weeks with very good results, in addition to wearing sunscreen and long sleeves. The site of the cancer had gotten red but now appeared and felt like the surrounding skin. No other lesions were bothering the Veteran and he had no other skin complaints. It was noted that the Veteran’s Bowen’s was much improved and that he would continue with Aldara three times per week, as well as continue to wear sunscreen and long sleeves. Id. In his February 2013 NOD, the Veteran indicated that the cancerous legion had developed on only one area of his body approximately 5 to 10 years after returning from Vietnam. See February 2013 Notice of Disagreement. Analysis At the outset, the Board notes that the Veteran's skin cancer is not listed as one of the disabilities for which presumptive service connection based on herbicide exposure can be granted under 38 C.F.R. § 3.307 (a)(6) and 38 C.F.R. § 3.309 (e). Thus, service connection may not be granted on a presumptive basis based on herbicide exposure. Further, the Veteran's skin cancer was not treated during service or diagnosed within one year of separation of service. The record shows that the Veteran's skin cancer was first diagnosed in 2012, and for his part, the Veteran has indicated that the left leg lesion, later diagnosed as skin cancer, did not manifest until approximately 5 to 10 years after service. Thus, the evidence establishes that skin cancer had its onset, at earliest, some 5 years following the Veteran's separation from service. Consequently, service connection cannot be granted based on chronicity or continuity of symptomatology as the skin cancer or symptoms thereof did not manifest during service or within one year of separation from service. 38 C.F.R. § 3.309 (a). The Veteran is therefore not entitled to invoke these presumptions for skin cancer; however, he is not precluded from establishing service connection under a theory of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). In this regard, the Veteran has been diagnosed with Bowen’s disease, squamous cell carcinoma, and actinic keratosis. As such, the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, the claim fails for lack of an in-service incurrence. There is no evidence of the presence of skin cancer or any skin condition during the Veteran’s active service. As noted above, the Veteran has stated that the left leg skin lesion, later diagnosed as skin cancer, did not manifest until approximately 5 to 10 years after service. Thus, the Veteran has not asserted an in-service incurrence for his skin condition, other than Agent Orange exposure. The Board has considered the Veteran's lay statements indicating a direct nexus between his disability and service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the diagnosis and etiology of skin cancer falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his diagnosed skin cancer is related to service, to include his in-service herbicide exposure, requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Hence, his assertions in this regard have no probative value. The Board observes that the Veteran has not been provided with a VA examination in connection with his service connection claim for skin cancer. However, the Board finds that the duty to obtain a medical opinion is not triggered because the only evidence of record relating the Veteran's claimed disability to service are his own general conclusory statements, which do not meet the low threshold of an indication that the claimed disability is due to service. See 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). The Veteran has not met his burden of proof. See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (explicitly rejecting the argument that "the Board must accept a Veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding that the Board must determine "the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). Based on a review of the record evidence, the Board concludes that service connection for skin cancer, to include as due to herbicide exposure, is not warranted. Although the record evidence shows that the Veteran has a current diagnosis of skin cancer, it does not indicate that the Veteran's skin cancer has a causal connection to, or is associated with, his active military service. In light of the foregoing, the Board must conclude that the preponderance of the evidence is against the claim. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). 1. Hypertension is remanded. The Veteran contends that his hypertension is related to his conceded exposure to herbicides, or alternatively, is the result of consuming daily salt tablets which were prescribed in service. A VA examination was provided in January 2013. The examiner noted that the Veteran reported an onset of symptoms in 1970, with elevated blood pressure off and on until the 1980s, when he was diagnosed with hypertension and started on medication. No medical opinion as to the etiology of the Veteran’s hypertension was provided. See January 2013 VA Hypertension Disability Benefits Questionnaire. In a February 2013 NOD, the Veteran reported that he was given a physical examination in 1968 for fitness to enter service. At the time, the Veteran contends that his blood pressure was elevated to the extent that the doctor declined to recommend him to the Army. The doctor suggested that the Veteran lay on a couch while the doctor went to lunch and that he would retest the Veteran’s blood pressure when he returned. The Veteran asserts that he fell asleep and the doctor returned and took a blood pressure reading while he was still sleeping. The doctor found the reading acceptable and the Veteran was admitted to service. The Veteran further asserts that during his one-year deployment to Vietnam, he was required to take a salt tablet every day, as required by the Army. It is his contention that these daily salt tablets increased the level of his borderline hypertension. See February 2013 Notice of Disagreement. With respect to the Veteran's allegation that his hypertension may be related to his exposure to herbicides in service, the Board is cognizant that there is no VA presumption for service connection for hypertension. See 38 C.F.R. § 3.309 (e) (listing those diseases associated with exposure to certain herbicide agents). However, even though the Veteran is not entitled to a presumption of service connection for a disability based on exposure to herbicides, he is not otherwise precluded from establishing service connection with proof of direct causation. See Combee, supra; Stefl v. Nicholson, 21 Vet. App. 120 (2007). Furthermore, although VA has not conceded a relationship between hypertension and Agent Orange, it is significant to note that, in its Update 11 (2018), the National Academy of Science has found that there is “sufficient evidence” of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. See Veterans and Agent Orange: Update 11 (2018), of the National Academy of Sciences, Engineering and Medicine (NAS). According to NAS, the “Sufficient Evidence” category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure. Id. Hence, the Board takes judicial notice of the existence of the recent update concerning an association between hypertension and herbicide exposure. See generally Monzingo v. Shinseki, 26 Vet. App. 97, 103-04 (2012). Lastly, there is no medical opinion that addresses the Veteran’s contentions of a direct etiological relationship between his current hypertension and salt tablets prescribed in service. In light of the recent NAS studies’ findings, and the Veteran’s contentions regarding a relationship between his current hypertension and salt tablets prescribed in service, the Board finds that a medical opinion must be obtained which considers this report and addresses whether the Veteran's hypertension is etiologically related to his in-service exposure to herbicide agents, or is otherwise related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Nieves-Rodriguez v. Peake 22 Vet. App. 295, 300 (2008). 2. Epilepsy is remanded. The Veteran contends that he has epilepsy which is the result of his conceded exposure to herbicide agents in service. The Board notes that epilepsy is not a medical condition which VA recognizes as presumptively caused by exposure to herbicide agents under 38 C.F.R. § 3.309 (e). Nonetheless, service connection may still be warranted on a direct basis. In this regard, the Veteran has not been afforded a VA examination with respect to the nature and etiology of his epilepsy. The Board finds that remand is warranted so that a VA examination and medical opinion may be provided. Moreover, the Veteran has alternatively contended that his epilepsy is secondary to his hypertension. As such, this issue is inextricably intertwined with the question of whether the Veteran’s currently diagnosed hypertension is related to his military service. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, a remand is required for a VA examination and medical opinion addressing the etiology of the Veteran’s epilepsy condition, to include as due to herbicide exposure, and any relationship which may exist between the Veteran’s epilepsy and hypertension. 3. Bilateral Hearing Loss is remanded. The January 2013 rating decision on appeal granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable evaluation. The Veteran maintains that his hearing loss disability is more severe than is reflected by his current noncompensable (zero percent) evaluation. The Veteran was last afforded a VA audiological examination in January 2013, the results of which warranted a noncompensable evaluation under relevant VA regulations. VA treatment records indicate that the Veteran was seen in audiology in August and September 2016. At that time, the Veteran reported that his hearing problems had worsened, particularly in the courtrooms in which he works as an attorney. An otoscopy showed that the Veteran’s external auditory canals were completely occluded bilaterally. Cerumen impaction was resolved on the right ear, however impaction on the left remained. The audiologist noted that the Veteran would be given an ENT referral to address the impacted left ear and thereafter could schedule another appointment for evaluation. The record contains no indication that the Veteran received any subsequent audiometric evaluation. Given that the most recent examination of record is almost 6 years ago; there is suggestion of worsening of disability; and the Veteran’s statements about the functional impact of his hearing loss disability; the Board finds that a new examination – with findings responsive to applicable rating criteria – is warranted in order to fully evaluate the severity of the Veteran's bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, the matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records documenting treatment for hypertension, epilepsy, and hearing loss. 2. After any additional records have been obtained, the record should be provided to an appropriate medical professional to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The Veteran's claims file (to include this decision) must be reviewed by the examiner providing the addendum opinion. Upon review of the claims file, pertinent medical history, and the relevant medical literature, the examiner should provide an opinion responding to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is causally or etiologically related to conceded in-service herbicide exposure? The Board is cognizant that there is no VA presumption of service connection for hypertension as due to herbicide exposure. The question here is, considering the NAS elevation of hypertension to the "Sufficient Evidence" category, what is the likelihood that this Veteran's hypertension is related to his herbicide exposure given his medical history, family history, absence of other risk factors, etc. See Veterans and Agent Orange: Update 11 (2018), NAS. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is caused by, the result of, or otherwise related to, taking daily salt tablets as required by the Army during his one-year tour of duty in Vietnam? In rendering these opinions, the examiner should assume that the Veteran was exposed to herbicides in service. Additionally, while the examiner is free to cite to studies by the National Academy of Sciences or any other medical treatises in rendering the opinion, the examiner may not rely solely on the fact that the Veteran's conditions are not on the presumptive list of diseases associated with herbicide exposure. Rather, the opinion should explain why any statistical or medical studies are found to be persuasive or unpersuasive, and should address whether there are other risk factors that might be the cause of the Veteran's conditions or whether they manifested in an unusual manner. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 3. Thereafter, schedule the Veteran for a VA examination with an appropriate VA clinician to determine the nature and etiology of his epilepsy condition. The claims file, including a copy of this remand, must be made available to and be reviewed by the clinician. All relevant studies, tests, and evaluations deemed necessary by the clinician should be performed. Upon review of the claims file, pertinent medical history, and the relevant medical literature, the examiner should provide an opinion responding to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's epilepsy is causally or etiologically related to conceded in-service herbicide exposure? (b) Is it at least as likely as not (50 percent or better probability) that the Veteran's epilepsy is either proximately due to OR aggravated by his claimed hypertension. In rendering these opinions, the examiner should assume that the Veteran was exposed to herbicides in service. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 4. Thereafter, schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his bilateral hearing loss disability. The claims file, including all recently obtained treatment records, and a copy of this remand, should be made available to the examiner. Any studies, tests, and evaluations deemed necessary by the examiner must be performed, including the Maryland CNC test and a puretone audiometry test. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria and include an opinion regarding the functional effects caused by the Veteran's bilateral hearing loss disability. 5. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Lewis