Citation Nr: 19195348 Decision Date: 12/19/19 Archive Date: 12/18/19 DOCKET NO. 17-28 281 DATE: December 19, 2019 ORDER Service connection for a liver condition is denied. Service connection for sleep apnea is granted. Service connection for type II diabetes mellitus is granted. Service connection for peripheral neuropathy of left lower extremity is granted. Service connection for peripheral neuropathy of right lower extremity is granted. REMANDED The claim for service connection for a back disability is remanded. The claim for service connection for skin rash (or rosacea with facial edema and facial cellulitis, to include blepharitis) is remanded. The claim for service connection for dermatitis (or seborrheic eczema) is remanded. FINDINGS OF FACT 1. Evidence is insufficient to show that the Veteran has a current diagnosis of liver condition caused by his service or his type II diabetes. 2. Evidence is sufficient to show that the Veteran’s sleep apnea was caused by or a result of his service-connected nasal deformity. 3. It is as likely as not (50 percent or more probability) that the Veteran was exposed to herbicide agents (to include Agent Orange) during his service in Thailand. 4. Veteran’s peripheral neuropathy of left lower extremity is a related complication to his type II diabetes. 5. Veteran’s peripheral neuropathy of right lower extremity is a related complication to his type II diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection for a liver condition have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for peripheral neuropathy of left lower extremity have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 5. The criteria for service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to April 1970. His military specialty was airplane mechanic. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R.§ 3.303. 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 (nexus). 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 aggravated by, a service connected disability. 38 C.F.R.§3.310 (a). Further, service connection can also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). If a veteran is presumed to have been exposed to herbicides, or the evidence with respect to exposure is at least in equipoise, the veteran is entitled to a presumption of service connection for certain disorders listed under 38 C.F.R. § 3.309(e). Military personnel records show that the Veteran served at Takhli air force base in Thailand in 1969. He testified at his Board hearing in June 2019 that, during his service in Thailand, he routinely conducted his military duties around the perimeter of the base. He also provided buddy statement from his co-service member stating that while stationed in Thailand, he and the Veteran performed training and patrols near the perimeters of the base. The Board find the Veteran’s statements are credible and consistent with other records on file. As such, the Board finds that it is as likely as not (50 percent or greater probability) that he was exposed to herbicide agents (to include Agent Orange) during service. Liver The testified at his Board hearing in June 2019 that he was told by a private doctor that he had fatty liver condition, which was believed to be related to his type II diabetes. Private treatment records show that an abdomen ultrasound in July 2002 revealed benign fatty infiltration of the liver. However, records do not show that the Veteran had active liver condition since July 2002. VA treatment records also do not show any diagnosis of a liver condition. For example, tests in March 2014 and April 2015 show that liver functions were normal. Records also show that liver tests in January 2009 were normal except for a mild elevation in one test and hepatitis C was negative. Liver tests in May 2009 and March 2010 were all normal. Liver tests in January 2013 were normal and cholesterol was under excellent control. Although the Veteran believes that he has fatty liver condition caused by diabetes, his private physician (Dr. Doak) stated in a letter dated July 2012 that he could not determine if there was a link between fatty liver and herbicide exposure. He offered no opinion to connect diabetes and fatty liver. A private opinion by Dr. Bash dated October 2017 did not indicate any link between diabetes and fatty liver either. While the Veteran believes that his fatty liver was caused by his diabetes, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of such a disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus in this case. Additionally, evidence does not show that he has a current disability of a liver condition, his liver function tests were normal. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for a liver condition is denied. Sleep Apnea The Veteran testified at his Board hearing in June 2019 that during service, he had difficulty sleeping at night and was always sleeping during daytime. He reported that he was diagnosed with deviated nasal septum and he underwent nasal surgery, which did not resolve his sleeping problems. The Veteran also submitted a buddy statement by a service member who shared a room with the Veteran, stating that he had to move to the end of the room because Veteran’s snoring was so loud. Service treatment records (STRs) show that the Veteran had surgery to correct deviated nasal septum which blocked the right naris. The Veteran was afforded a VA examination on his nose condition in July 2009, at which the examiner indicated that the nose surgery in service did not relieve the nasal obstruction, and opined that nasal deformity would aggravate sleep apnea. The Veteran was afforded another VA examination in July 2015, at which the examiner indicated that he was diagnosed with obstructive sleep apnea (OSA) in 1993 by a sleep study. The examiner, however, opined that it was less likely than not (less than 50 percent probability) that the Veteran’s sleep apnea was caused or aggravated by the deviated septum during service, because sleep apnea was not diagnosed within service or shortly after service, it was diagnosed more than 20 years after he separated from service. The examiner added that it was speculative to assess causation or aggravation by the deviated septum. A private opinion from October 2017 concluded otherwise. In it, the medical professional opined that nasal obstructions were known to cause OSA, and cited a medical literature showing that “apneas, sleep arousals and awakenings, and loss of deep sleep occur during nasal obstruction and may explain complaints of poor sleep quality during upper respiratory infections.” The doctor concluded that the Veteran’s sleep apnea was more than likely caused by his deviated nasal septum during service. Here, the Board is presented with conflicting medical opinions which were provided by medical professionals who are presumed to be competent to provide the opinions. The 2015 VA opinion and the private opinion were both supported by rationales. In this case, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran’s OSA was caused by his deviated nose septum during his active service or his service-connected nasal deformity. Accordingly, service connection for OSA is granted. Diabetes Type II diabetes is a type of disease listed under 38 C.F.R. § 3.309(e) that is presumptively caused by herbicide exposure. As Veteran’s herbicide exposure during service is established, service connection for type II diabetes is granted. Peripheral Neuropathy VA treatment records show that the Veteran has peripheral neuropathy in both lower extremities as a complication of his now service connected diabetes. As such, service connection for peripheral neuropathy in the lower extremities is also granted. REASONS FOR REMAND Back The Veteran is seeking service connection for his back condition which he believes, was caused by his service, specifically by injuries caused by flying in helicopters during service. He testified at his Board hearing in June 2019 that he flew in helicopters in service almost every day for about one year, that at one time he twisted his back in an effort to hold on the helicopter to avoid being thrown out of it when it took a sharp turn. He reported that the back sprain was treated with ice. He also reported experiencing back pain shortly after separation from service, when he bent down to pick up a small package. The Veteran provided a brochure he received from VA, showing that regular exposure to whole body vibration by helicopters may cause low back pain. The Veteran also provided buddy statement for his co-service member that during service, he and the Veteran had to do auto rotation helicopter landing training which usually resulted in hard landings causing many sore backs. He also recalled that the Veteran told him about the twisted back incident when the helicopter made a sharp turn. STRs do not document any complains of or treatment for back condition. The Veteran did not report any back problems on his report of medical history in November 1969 (approximately five months prior to his separation), and the separation physical did not reveal any back problems. The Veteran was afforded a VA examination in June 1970, at which he did not report any back conditions. Physical exam of musculoskeletal system at that time was normal except for flat feet. Private treatment records show that the Veteran had a spine X-rays of lumbar spine in April 1997. He had a CT scan of lumbar spine in January 2005 showing advanced degenerative disc disease (DDD). Records in March 2005 showed that the Veteran reported experiencing back pain with onset approximately two years before with no apparent reason. The Veteran was provided a VA examination in July 2015, at which the examiner diagnosed him with degenerative arthritis of the spine. The Veteran reported that he first experienced back strain in 1969, which was healed up uneventfully. Subsequently, he had back problems again in 1972 and 1973. The examiner opined that his lumbar spine disability was less likely than not (less than 50 percent probability) related to service or service activity. The examiner explained that the reported back strain during service was for soft tissue injury due to muscle strengthening. After service, the Veteran worked for a steel foundry as a millwright from 1975 to 2008 during which time he did mechanical type of work. The earliest medical record on file was a 1997 back x-rays. There was a 27 years gap from April 1970 (the time of separation) to 1997 during which no evidence was found to indicate that the Veteran had any continued back problems as result of the soft tissue injury occurred in service. However, the examiner did not address the potential impact on the lumbar spine due to the helicopter vibration and hard landings experienced by the Veteran during service. A private opinion by Dr. B dated October 2017 suggested that the Veteran’s lumbar DDD was caused by the “auto rotation” helicopter landings during service. He explained that the Veteran had at least 24 helicopter “auto rotation” landings, which were analogous to axial loads from parachuting. A study of 90,000 jumps with landing velocity at 15 MPH (equivalent to the force jumping from a height of 7 feet) showed 16.9% of all injures associated with parachuting were back injuries. Dr. B. pointed out that the time lag between injury in service and current pathology was consistent with known medical principles and the natural progression of DDD. However, Dr. B. did not address other post service risk factors, such as working over 20 years of mechanical type of work in a steel foundry. Therefore, further development is necessary to assess the etiology of the Veteran’s back disability. Skin rash and dermatitis The Veteran is seeking service connection for skin rash (or rosacea with facial edema and facial cellulitis, to include blepharitis) and dermatitis (or seborrheic eczema), which he believes, were caused by his service, specifically, by exposure to various chemicals contained in the solvents and herbicide agents, such as Agent Orange. The Veteran testified at his Board hearing in June 2019 that as an airplane mechanic in service, he was contently exposed to various chemicals contained in cleaning solvents and fuel fumes. He presented a photo showing him clean up a spill in a military work shop wearing no shirt, no protective clothing or mask. He recalled that he started experiencing skin problems shortly after service, and presented photos showing skin rash on his ankles. Although there were no dates on the photos, the Veteran recalled that they were taken in the 1970s. STRs show that the Veteran was treated for blepharitis (puffy eyelid) and dandruff in February 1968. The separation physical noted eye discomfort. Private treatment records show that he was treated for puffy eyelid in November 2005, and the problem list noted dermatitis since February,1997. He had exclusive evaluation for allergy but did not establish etiology of the symptoms. VA treatment records show that the Veteran reported February 2009 that he had two years of eyelid swelling, redness, scaling of cheeks, and frontal scalp with no contact agents oar allergens that he could recall. He was diagnosed with acne/rosacea with facial edema. In November 2011, his symptoms were evaluated by the dermatology department and was found that they were more consistent with severe seborrheic dermatitis than prior diagnosis of acne rosacea. The records also show that he was hospitalized in July 2012 for swollen ear infection and was treated as cellulitis of the ear. The Veteran was provided a VA examination in July 2015, at which the examiner noted the diagnoses of skin conditions of blepharitis (puffy eyelid) and dandruff in 1968; acne rosacea with facial edema in 2009; seborrheic dermatitis in 2011; and facial cellulitis in 2012. The Veteran reported being exposed to various chemicals contained in solvents and jet fuel in service, to include tetrachloroethylene (PCE) and methylethylketone (MEK); he also reported exposure ot herbicide agents, such as Agent Orange. The examiner concluded that the Veteran’s skin conditions were less likely (less than 50 percent probability) caused or aggravated by solvent and other chemicals exposure during service. The examiner opined that MEK was easily absorbed through skin and lungs, producing facial and other dermatitis. However, the examiner indicated that she could not find MEK exposure in the records associated with the Veteran’s assigned job in aircraft maintenance, and she was not clear whether the chemical exposure was established or conceded. The examiner further acknowledged that seborrheic dermatitis was a chronic relapsing condition with potential for recurrences, and that the treated skin condition in service in 1967 was the same skin condition treated in 2011, albeit in its current severe form. It appears that examiner made her conclusion without knowing whether exposure to certain chemicals by the Veteran was established or conceded. In a private medical opinion dated October 2017, Dr. B. made a general statement that that it was well-known that both trichloroethylene (TCE) and Agent Orange may cause skin problems, but it appears that Dr. B. did not know the exact diagnosis of the Veteran’s skin conditions, so he indicated that the nexus between TCE/Agent Orange and the skin problems could be re-visited once the diagnoses were provided. The Board finds that based on the evidence of the records, it is at least as likely as not (50 percent or more probability) that the Veteran was exposed to herbicide agents (include Agent Orange), solvents, detergents, cleaning substances, and jet fumes during service. Therefore, etiology of the Veteran’s skin conditions should be re-assessed based on this finding. Therefore, matters are REMANDED for the following actions: 1. Obtain a medical opinion assessing the etiology of the Veteran’s current back disability. If a physical examination is needed to address the Board’s questions, one should be scheduled. The examiner should answer the following questions: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s back condition either began during or was otherwise caused by his military service, to include the episode of twisted back incident, and exposure to helicopter vibrations and hard helicopter landings? Why or why not? In doing so, the examiner should address (1) VA brochure showing that regular exposure to whole body vibration by helicopters may cause low back pain (contained in 06/13/2019 document entitled “Correspondence”) and (2) Dr. Bash’s opinion (contained in 10/13/2017 document entitled “Medical Treatment Record – Non-Government Facility”) that hard helicopter landings due to “auto rotation” landings were analogous to axial loads from parachuting and may cause back injuries, and that the time lag between injury in service and diagnoses of lumbar DDD was consistent with known medical principles and the natural progression of the decease. In this regard, the examiner should consider the Veteran’s report of the twisted back incident, the helicopter hard landings and regular exposure of helicopter vibrations is credible. 2. Obtain a medical opinion assessing the etiology of the Veteran’s skin conditions, to include skin rash (or rosacea with facial edema and facial cellulitis, to include blepharitis) and dermatitis (or seborrheic eczema). If a physical examination is needed to address the Board’s questions, one should be scheduled. The examiner should answer the following questions: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s skin conditions have their onsets in service or were otherwise caused by his service, to include his exposure to herbicide agents (to include Agent Orange), solvents, detergents, cleaning substances, and jet fumes? Why or why not? In doing so, the examiner should address (1) the July 2015 VA opinion indicating that (a) MEK was easily absorbed through skin and lungs, producing facial and other dermatitis, (b) seborrheic dermatitis was a chronic relapsing condition with potential for recurrences and (c) the treated skin condition in service in 1967 was the same skin condition treated in 2011, albeit in its current severe form; and (2) Dr. Bash’s opinion (contained in 10/13/2017 document entitled “Medical Treatment Record – Non-Government Facility”) that it was well-known that both trichloroethylene (TCE) and Agent Orange may cause skin problems. In this regard, the examiner should consider the Veteran’s report of experiencing skin rash during the 70s is credible. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.