Citation Nr: 20002133 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 13-31 413 DATE: January 9, 2020 ORDER Entitlement to service connection for immune system condition is denied. Entitlement to service connection for circulatory system condition is denied. Entitlement to service connection for prostate condition is denied. Entitlement to service connection for skin rash is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had an immune system condition at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a circulatory system condition at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had a prostate condition that began during service or is otherwise related to service. 4. The preponderance of the evidence is against finding that a skin rash began during active service, or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for immune system condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for circulatory system condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for prostate condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for skin rash have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to September 1967 and from July 1968 to March 1971 with Vietnam service. He died in December 2014. The Appellant is the Veteran’s surviving spouse who has been substituted as claimant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a Board hearing in November 2015. These claims were last before the Board in April 2016 where they were remanded for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). The Board has conceded the Veteran’s herbicide exposure. Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, to include prostate cancer and chloracne, shall be service-connected if the requirements of section 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Chloracne (or other acneform disease consistent with chloracne) is the only skin condition included in the list of diseases presumptive to Agent Orange exposure. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Id. Although a veteran may not be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), rev’d in part, Combee v. Principi, 4 Vet. App. 78 (1993). 1. Entitlement to service connection for immune system condition 2. Entitlement to service connection for circulatory system condition The Appellant contends that the Veteran had an immune system condition because he experienced recurrent skin rashes, fatigue, fever, pneumonia, and loss of appetite, which was related to in-service Agent Orange exposure. See January 2013 Buddy Statement. She also contends that the Veteran had a circulatory system condition which was related to his service because the Veteran reported that his hands and toes would turn purple in the cold and he had experienced muscle cramps/spasms in his legs for years. The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current diagnosis of an immune system condition or circulatory condition and did not have one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records (STRs) do not contain any mention of an immune system condition or circulatory condition. Additionally, the Veteran’s post-service treatment records do not contain any diagnosis of an immune system condition or circulatory system condition and the record shows that the Veteran was not diagnosed with any such conditions at any time prior to his death. While the Appellant believes Veteran suffered from an immune system condition and circulatory system condition, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of immune and circulatory system disorders are matters that require medical training and expertise to determine. Accordingly, her opinion as to the diagnosis or etiology of an immune or circulatory system condition is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis. The Board gives more probative weight to the competent medical evidence. As the competent evidence does not reflect a current immune or circulatory system disability prior to the Veteran’s death, service connection must be denied. In sum, there is no competent evidence of record establishing that the Veteran was diagnosed with the claimed immune system condition or circulatory system condition. Accordingly, the preponderance of the competent and probative evidence is against the claim, and service connection for an immune system condition and circulatory system condition is denied. 3. Entitlement to service connection for prostate condition The Appellant contends that the Veteran had a prostate condition that was related to service. The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran was treated for an enlarged prostate, and evidence shows that the Veteran had conceded exposure to herbicide agents, the preponderance of the evidence weighs against finding that the Veteran’s enlarged prostate began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s STRs do not contain any mention of a prostate condition. Treatment records contain evidence that the Veteran was taking an herb for an enlarged prostate. See Treatment Records. Additionally, May 2014 treatment records indicate that the Veteran experienced some difficulty urinating following a surgery, but this difficulty improved with hydration and medication to shrink his prostate. While prostate cancer is a disease associated with herbicide agent exposure, prostate disabilities other than prostate cancer are not presumptive conditions. There is no competent evidence of record indicating the Veteran suffered from prostate cancer, and no competent evidence suggesting a link between the Veteran’s enlarged prostate and his military service. While the Appellant believes the Veteran had a prostate condition that is related to service, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of prostate disorders are matters that require medical training and expertise to determine. Accordingly, her opinion as to the diagnosis or etiology of prostate conditions is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis. In sum, there is no competent evidence of record establishing that the Veteran was diagnosed with prostate cancer or that a current prostate condition is etiologically related to service. Accordingly, the preponderance of the competent and probative evidence is against the Appellant’s claim, and service connection for a prostate condition is denied 4. Entitlement to service connection for skin rash The Appellant contends that the Veteran’s skin rash was related to his service, to include his in-service skin condition and agent orange exposure. Chloracne (or other acneform disease consistent with chloracne) is the only skin condition included in the list of diseases presumptive to Agent Orange exposure, however, the Veteran was not diagnosed with chloracne, but was diagnosed with nevus sebaceous. Nevus sebaceous is not included in the list of diseases presumptively linked to herbicide exposure. The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a current diagnosis of nevus sebaceous, and evidence shows treatment for herpes in service and exposure to herbicide agents occurred, the preponderance of the evidence weighs against finding that the Veteran’s current skin condition began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s STRs show that the Veteran was noted to have warts on his penis, and was diagnosed with penile lesions, chancroid on shaft of penis, and herpes progenitalis recurrent in his suprapubic area during service. However, in March 1971 toward the end of his service, his examination showed his skin to be normal. See STRs. VA treatment records show the Veteran was not diagnosed with nevus sebaceous until February 2013, decades after his separation from service. The Board notes that service connection for herpes simplex was previously denied. Further, the July 2019 VA examiner opined that the Veteran’s skin rash is not at least as likely as not related to an in-service injury, event, or disease, including agent orange exposure or his in-service herpes progenitalis. The examiner looked at photographs of the claimed rash and noted that the rash does not have the dermatomal distribution that is seen with herpes zoster. The examiner also stated that the rash is recurrent and herpes zoster is not recurrent. The examiner further explained: Exposure to herbicides is not shown to be causal for a skin rash similar to the one pictured in the reviewed photographs. Other than chloracne, dioxin is not shown to cause skin rashes. Chloracne is a well-established, long-term effect of exposure to TCDD or dioxin, a contaminant in Agent Orange. It is the only skin disorder consistently reported to be associated specifically with Agent Orange and other herbicides. Severe chloracne may lead to open sores and permanent scars. These findings are not consistent with the pictures of this Veteran’s rash in VBMS. The herpes diagnosed in service is genital herpes or Herpes Type II and occurred on the genitals, not the abdomen or the chest, of the Veteran. This rash does not have the dermatomal distribution that is seen with herpes zoster. Also, it is recurrent, and herpes zoster is not recurrent. Herpes Type II is found on the genitals or in the oral cavity and not on the trunk and not to this extent. It is also painful. This rash does not have the dermatomal distribution that is seen with herpes zoster. Herpes Type II is found on the genitals and not on the trunk and not to this extent. It is also painful. Herpes virus Type 1 causes sores around the mouth and lips (sometimes called fever blisters or cold sores). HSV-1 can cause genital herpes, but most cases of genital herpes are caused by Herpes Type 2. In HSV-2, the infected person may have sores around the genitals or rectum. See July 2019 VA examination. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical opinion to the contrary in the record. In sum, there is no competent evidence of record establishing that the Veteran’s current skin rash arose during service or that such condition is etiologically related to service. Accordingly, the preponderance of the competent and probative evidence is against the claim, and service connection for a skin rash is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, Associate Counsel 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.