Citation Nr: 20005225 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 19-27 053 DATE: January 22, 2020 ORDER Entitlement to service connection for diverticulosis is denied. Entitlement to service connection for a testicular condition is denied. Entitlement to service connection for squamous cell carcinoma is denied. REMANDED Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s diverticulosis was related to an event, injury, or disease in service, to include as due to his presumed herbicide agent exposure. 2. The preponderance of the evidence is against a finding that the Veteran’s hypogonadism was related to an event, injury, or disease in service, to include as due to his presumed herbicide agent exposure. 3. The preponderance of the evidence is against a finding that the Veteran’s squamous cell carcinoma manifested during service or within one year of service, and the preponderance of the evidence is also against a finding that the Veteran’s skin cancer is related to an event, injury, or disease in service, to include as due to his presumed herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diverticulosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for entitlement to service connection for a testicular condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for squamous cell carcinoma have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran died in November 2017. The Appellant is the Veteran’s surviving spouse and was properly substituted as the claimant for the issues being adjudicated herein. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, a veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA regulations further provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, 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). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction); atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). 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 that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and 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). Additionally, when a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term “chronic disease” in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for chronic diseases, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. Id. To establish secondary service connection based on aggravation, the evidence must show an increase in severity of a disease or injury beyond a medically established baseline which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected condition. 38 C.F.R. § 3.310(b). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s treatment records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to service connection for diverticulosis The Appellant asserts that the Veteran was entitled to service connection for diverticulosis (claimed as diverticulitis), as the condition was due to his exposure to herbicide agents during his service in Vietnam. At the outset, the Board notes that the Veteran’s service records show that he served in the Republic of Vietnam, and he is therefore presumed to have been exposed to Agent Orange or other herbicide agents. See 38 C.F.R. §§ 3.307 (a)(6)(iii). However, neither diverticulitis nor diverticulosis are listed as one of the disabilities for which presumptive service connection can be granted under 38 C.F.R. §§ 3.307(a)(6) and 38 C.F.R. §§ 3.309(e) based on herbicide agent exposure. Thus, entitlement to service connection on a presumptive basis, as due to herbicide agent exposure, is not warranted. Additionally, neither diverticulitis nor diverticulosis are one of the chronic conditions listed at 38 C.F.R. § 3.309(a). Consequently, service connection cannot be granted based on chronicity or continuity of symptomatology. See Walker, supra. While the Veteran is not entitled to service connection for diverticulosis on a presumptive basis, his claim is still considered under traditional service connection principles. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In a November 2009 VA treatment record, the treating clinician noted that the Veteran had a partial colectomy for diverticulosis/diverticulitis and listed the condition as a chronic problem. In an August 2017 VA primary care outpatient note, the treating clinician assessed him with mild diverticulosis. Therefore, the record reflects that the Veteran had a current diagnosis of diverticulosis during the period on appeal, and the existence of a current disability is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, since his herbicide agent exposure is presumed, there is evidence of an event, injury, or disease in service. Therefore, the entitlement to service connection turns upon whether there is evidence of a nexus between the in-service event and the present disability. Id. While the evidence of record generally indicates that the Veteran was diagnosed with diverticulosis/diverticulitis, there is no indication from the medical evidence of record that his condition was related to his active military service, to include as due to Agent Orange exposure. The Board recognizes that the Veteran was not afforded a VA authorized examination in association with his claim prior to his death and no VA medical opinion has been provided. However, under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination or opinion must only be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting 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) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 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, is a low threshold. McClendon, 20 Vet. App. at 83. While, as noted above, the record reflects that the Veteran has established the presence of a current disability and of an in-service incident, there is no competent evidence etiologically linking the two. Additionally, although the Veteran and the Appellant indicated their belief that his diverticulosis was related to his presumed exposure to Agent Orange, the record does not indicate that either of them has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Thus, they are not competent to offer an etiological opinion concerning his condition. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The record is further absent of any evidence indicating that his diverticulosis is otherwise related to his active duty military service. The Board also notes that the absence of diverticulosis as a disease presumed to be associated with herbicide agent exposure in 38 C.F.R. § 3.309(e) inherently implies that the condition is presumed to not be related to the claimed in-service event. Accordingly, the criteria for requiring VA to provide the Veteran an examination pursuant to McClendon have not been met, as there is no competent evidence of record indicating that the Veteran’s diverticulosis may be associated with his active duty military service, including his exposure to herbicide agents. As the preponderance of the evidence is against a finding that his diverticulosis was related to his active duty service, entitlement to service connection is not warranted. 2. Entitlement to service connection for a testicular condition The Appellant contends that the Veteran was entitled to service connection for a testicular condition, as the condition was due to his exposure to herbicide agents during his service in Vietnam. The Board notes that no testicular conditions are listed as a disability for which presumptive service connection can be granted under 38 C.F.R. §§ 3.307(a)(6) and 38 C.F.R. §§ 3.309(e) based on herbicide agent exposure. Thus, entitlement to service connection on a presumptive basis, as due to herbicide agent exposure, is not warranted. Additionally, no testicular condition is listed as a chronic condition at 38 C.F.R. § 3.309(a). Consequently, service connection cannot be granted based on chronicity or continuity of symptomatology. See Walker, supra. Again, while the Veteran is not entitled to service connection for a testicular condition on a presumptive basis, his claim is still considered under traditional service connection principles. See Combee, supra. In a November 2009 VA treatment record, the treating clinician noted that the Veteran had very low testosterone levels and diagnosed him with hypogonadism. A March 2017 VA problem list noted a diagnosis of “other testicular hypofunction.” Therefore, the record reflects that the Veteran had a current diagnosis of a testicular condition during the period on appeal, and the existence of a current disability is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Again, since his herbicide agent exposure is presumed, there is evidence of an event, injury, or disease in service. Therefore, the entitlement to service connection turns upon whether there is evidence of a nexus between the in-service event and the present disability. Id. While the evidence of record generally indicates that the Veteran was diagnosed with testicular hypofunction, there is no indication from the medical evidence of record that his condition was related to his active military service, to include as due to herbicide agent exposure. The Board again recognizes that the Veteran was not afforded a VA authorized examination in association with his claim prior to his death and no VA medical opinion has been provided. However, although the record reflects that the Veteran has established the presence of a current disability and of an in-service incident, there is no competent evidence etiologically linking the two. While the Veteran and the Appellant indicated their belief that his testicular hypofunction was related to his presumed exposure to Agent Orange, the record does not indicate that either of them has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Thus, they are not competent to offer an etiological opinion concerning his condition. See Jandreau, supra. The record is further absent of any evidence indicating that his testicular hypofunction is otherwise related to his active duty military service. The Board notes that the absence of testicular hypofunction as a disease presumed to be associated with herbicide agent exposure in 38 C.F.R. § 3.309(e) again inherently implies that the condition is presumed to not be related to the claimed in-service event. Accordingly, the criteria for requiring VA to provide the Veteran an examination pursuant to McClendon have not been met, as there is no competent evidence of record indicating that the Veteran’s testicular hypofunction may be associated with his active duty military service, including his exposure to herbicide agents. As the preponderance of the evidence is against a finding that his testicular condition was related to his active duty service, entitlement to service connection is not warranted. 3. Entitlement to service connection for squamous cell carcinoma The Appellant contends that the Veteran was entitled to service connection for a squamous cell carcinoma, as the condition was due to his exposure to herbicide agents during his service in Vietnam. The Board notes that squamous cell carcinoma is not listed as a disability for which presumptive service connection can be granted under 38 C.F.R. §§ 3.307(a)(6) and 38 C.F.R. §§ 3.309(e) based on herbicide agent exposure. Thus, entitlement to service connection on a presumptive basis, as due to herbicide agent exposure, is not warranted. Additionally, the Veteran’s service treatment records show no complaints, diagnosis, or treatment for squamous cell carcinoma at any time during active service; nor, is there evidence that his squamous cell carcinoma was treated or diagnosed within one year of separation of service. Rather, the record indicates that the Veteran was initially diagnosed with squamous cell carcinoma in August 2016. Thus, the evidence establishes that his skin cancer had its onset approximately 45 years following his 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). Once again, while the Veteran is not entitled to service connection for squamous cell carcinoma on a presumptive basis, his claim is still considered under traditional service connection principles. See Combee, supra. In a December 2016 VA primary care evaluation and management note, the treating clinician indicated that the Veteran had skin cancer removed from his face two months prior. Additionally, squamous cell carcinoma is listed as the cause of death on the Veteran’s death certificate. Therefore, the record reflects that the Veteran had a current diagnosis of squamous cell carcinoma during the period on appeal, and the existence of a current disability is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Again, since his herbicide agent exposure is presumed, there is evidence of an event, injury, or disease in service. Therefore, the entitlement to service connection turns upon whether there is evidence of a nexus between the in-service event and the present disability. Id. While the evidence of record generally indicates that the Veteran was diagnosed with squamous cell carcinoma, there is no indication from the medical evidence of record that his condition was related to his active military service, to include as due to Agent Orange exposure. The Board once again recognizes that the Veteran was not afforded a VA authorized examination in association with his claim prior to his death and no VA medical opinion has been provided. However, although the record reflects that the Veteran has established the presence of a current disability and of an in-service incident, there is no competent evidence etiologically linking the two. While the Veteran and the Appellant indicated their belief that his squamous cell carcinoma was related to his presumed exposure to Agent Orange, the record does not indicate that either of them has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Thus, they are not competent to offer an etiological opinion concerning his condition. See Jandreau, supra. The record is further absent of any evidence indicating that squamous cell carcinoma is otherwise related to his active duty military service. The Board notes that the absence of squamous cell carcinoma as a disease presumed to be associated with herbicide agent exposure in 38 C.F.R. § 3.309(e) once again inherently implies that the condition is presumed to not be related to the claimed in-service event. Accordingly, the criteria for requiring VA to provide the Veteran an examination pursuant to McClendon have not been met, as there is no competent evidence of record indicating that the Veteran’s squamous cell carcinoma may be associated with his active duty military service, including his exposure to herbicide agents. As the preponderance of the evidence is against a finding that his squamous cell carcinoma was related to his active duty military service, entitlement to service connection is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder, to include OSA is remanded. The Appellant contends that the Veteran was entitled to service connection for a sleep disorder, to include OSA, as the condition was due to his exposure to herbicide agents during his service in Vietnam. The record reflects that the Veteran began VA treatment for fatigue as early as 2011. In a February 2013 VA mental disorders examination, the Veteran stated that he experienced problems sleeping since returning from Vietnam, and that he “never slept for any length of time.” He noted that he had daytime fatigue and “fel[t] tired all the time.” The examiner indicated that he reported problems with sleep disturbance due to nightmares and listed chronic sleep impairment as a symptom of his mental disorder. The Veteran’s medical records continued to note issues with sleep and fatigue, and he underwent a VA sleep study in August 2015. The examining physician diagnosed him with severe OSA, that was worse during supine REM sleep; dysfunction of his sleep cycle with multiple arousals from sleep; intermittent premature ventricular contractions (PVC) on his electrocardiogram (EKG); and severe periodic limb movements of sleep (PLMS). While sleep disorders are not among the conditions entitled to presumptive service connection as a chronic disease or as due to herbicide agent exposure under 38 C.F.R. § 3.309(a) and (e), the record indicates that the Veteran’s sleep disorders could potentially be related to or aggravated by his service-connected mental disorder. The Board notes that no VA medical opinion is of record concerning the etiology of his sleep disorders and, thus, an opinion is necessary on remand which includes entitlement to service connection on a secondary basis. See McClendon, supra 2. Entitlement to service connection for hypertension is remanded. The Appellant contends that the Veteran was entitled to service connection for hypertension, as the condition was due to his exposure to herbicide agents during his service in Vietnam. The record generally reflects that the Veteran had a current diagnosis of hypertension during the period on appeal, to include as noted in an August 2017 VA primary care outpatient note. While hypertension is not a condition listed at 38 C.F.R. § 3.309(e) as presumptively related to Agent Orange, the Board notes that in November 2018, the National Academy of Science (NAS) released an update to the report “Veterans and Agent Orange” wherein hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to herbicide agents, to the category of “sufficient” evidence of an association to herbicide agents. According to the NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. Accordingly, the recent update concerning the relationship between Agent Orange and hypertension indicates that the Veteran’s condition may be related to his presumed herbicide agent exposure during his service in Vietnam. Therefore, as there is no medical opinion of record, a VA medical opinion is necessary on remand to determine the nature and etiology of his hypertension. See McClendon, supra. The matters are REMANDED for the following action: 1. The AOJ should obtain a VA medical opinion regarding the nature and etiology of the Veteran’s sleep disorders. The entire claims file, including a copy of this remand, must be made available to the examiner and the examination report must reflect that such review was completed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any of the Veteran’s sleep disorders present during the period on appeal were related to his military service, to include as due to herbicide agent exposure and as due to or aggravated by a service-connected disability. The examiner should specifically discuss the results of the August 2015 VA sleep study and any symptoms or conditions associated with the Veteran’s mental disorder. The examiner must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The AOJ should obtain a VA medical opinion regarding the nature and etiology of the Veteran’s hypertension. The entire claims file, including a copy of this remand, must be made available to the examiner and the examination report must reflect that such review was completed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hypertension was related to his military service, to include as due to herbicide agent exposure. The examiner should specifically discuss the November 2018 update by the National Academy of Science described above. The examiner must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ferguson, 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.