Citation Nr: 20006087 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 17-33 457 DATE: January 28, 2020 ORDER Service connection for squamous cell carcinoma (SCC) of the right upper arm, to include as due to exposure to herbicide agents, is denied. Service connection for lipoma of the skin and subcutaneous tissue and epidermoid cyst versus foreign body granuloma, to include as due to exposure to herbicide agents, is denied. Service connection for bilateral lower extremity (BLE) peripheral neuropathy, to include as due to exposure to herbicide agents, is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents as a result of his service in Vietnam. 2. A preponderance of the evidence is against a finding that the Veteran’s SCC of the right upper arm, lipoma of the skin and subcutaneous tissue and epidermoid cyst versus foreign body granuloma, and BLE peripheral neuropathy are related to active duty, to include exposure to herbicide agents, nor were they manifest to a compensable degree within one year of discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for SCC of the right upper arm are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103a, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for lipoma of the skin and subcutaneous tissue and epidermoid cyst versus foreign body granuloma are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for BLE peripheral neuropathy are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to June 1968, to include service in the Republic of Vietnam (Vietnam). At a May 2019 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. 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). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain enumerated disorders, such as malignant tumors and organic diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Furthermore, if a veteran was exposed to herbicide agents (e.g., Agent Orange) during active service, presumptive service connection is warranted for certain specified diseases. 38 C.F.R. §§ 3.307, 3.309. A Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307. The following diseases are deemed associated with herbicide agent exposure, under current VA regulation: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin’s disease, ischemic heart 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, and soft-tissue sarcomas. Soft-tissue sarcomas include adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epitheloid leiomyosarcoma, rhabdomyosarcoma, ectomesenchymoma, angiosarcoma, proliferating angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma, malignant giant cell tumor of tendon sheath, malignant schwannoma, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epitheloid sarcoma, clear cell sarcoma of tendons and aponeuroses, extra-skeletal Ewing’s sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41442-41449, 61 Fed. Reg. 57586-57589 (1996). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, on his January 1966 service entrance report of medical history, the Veteran reported cramps in his legs. They were not considered disabling by the examining clinician. There is no evidence in the Veteran’s service treatment records (STRs) of any complaints, symptoms, treatment, or diagnosis of peripheral neuropathy or any other condition of the BLE, SCC, lipoma, epidermoid cyst, foreign body granuloma, or any other skin condition or malignancy. His June 1968 separation examination report noted that the Veteran’s skin and his lower extremities were normal. On his report of medical history, the Veteran himself reported no relevant conditions and continued to indicate that he experienced cramps in his legs. Post-service, an October 2009 biopsy confirmed that the Veteran had SCC on his right upper extremity at the elbow, keratoacanthoma type. It was subsequently excised. In January 2010, private clinicians observed a rubbery, mobile, non-tender subcutaneous mass of the left lateral upper arm and a similar lesion on the right upper arm. The Veteran was diagnosed with lipoma of other skin and subcutaneous tissue and epidermoid cyst versus foreign body granuloma. These lesions were determined to be benign. He was also subsequently diagnosed with actinic keratoses about the forehead, dorsal hands, and forearms. Such lesions either were removed or resolved on their own. The lipomas of the upper arms were still observed in a September 2013 VA treatment record and in a September 2014 record, it was noted that the lipomas were asymptomatic. In March 2015, a VA clinician stated that the lipomas were unchanged from a prior examination. In April 2010, the Veteran underwent nerve conduction and electromyography (EMG) testing which revealed severe sensorimotor axon loss polyneuropathy with no significant demyelination. The clinician stated that the neuropathy appeared to be chronic and slowly progressive. Later VA records listed a current condition of unspecified idiopathic peripheral neuropathy. At a May 2012 VA general medical examination, the Veteran stated that his peripheral neuropathy began in 1970. He currently had numbness in his legs that had worsened. He no longer took medication for his symptoms due to side effects. The Veteran has testified at two hearings regarding his claims. At a November 2014 Decision Review Officer (DRO) conference, he stated that his SCC was the result of a sunburn he had while stationed at Fort Bragg, North Carolina. He contended that he was treated for the sunburn at the time. He also described symptoms of peripheral neuropathy in service but that he did not seek treatment. His wife stated that she met the Veteran in 1970 and that his peripheral neuropathy symptoms progressively worsened over the years. At the May 2019 hearing, the Veteran stated that he first noticed his BLE peripheral neuropathy in the form of pain and swelling in the late 1990s but did not seek treatment as he did not know what it was. He was later diagnosed, and the clinician reportedly stated to him that he did not have nerve sensation in his BLE during a pinprick test. Based on the foregoing, the Board finds that service connection is not warranted for any of the claimed conditions. SCC, lipomas, epidermoid cyst versus foreign body granuloma, and BLE peripheral neuropathy did not have their onset during active service or within a year of separation. Although the Veteran reported at one point that his symptoms began in 1970, that date of onset is still beyond the year after separation. There was no evidence of a sunburn in the STRs, as well. All claimed conditions were diagnosed many years after separation. Accordingly, service connection on a presumptive basis as a chronic condition is not warranted for any of the claimed conditions. SCC, lipoma, epidermoid cyst, and foreign body granuloma are not among the diseases presumptively linked to herbicide agent exposure. As such, service connection on a presumptive basis due to herbicide agent exposure is not warranted. Although early-onset peripheral neuropathy is one of the listed diseases, the Veteran has not been diagnosed with early-onset peripheral neuropathy and his statements regarding when his BLE peripheral neuropathy symptoms started have varied by several decades. Without a diagnosis of early-onset peripheral neuropathy and given the inconsistency of statements, service connection on a presumptive basis due to herbicide agent exposure is not established for BLE peripheral neuropathy. Notwithstanding the inapplicability of the herbicide agent presumptive service connection regulations, the Board is obligated to fully consider the Veteran’s claims on a direct basis. There is no indication that the Veteran suffered from a skin disorder or peripheral neuropathy in service, to include from his own contemporaneous statements to clinicians. However, as exposure to herbicide agents may be presumed to have occurred, the question then becomes whether there is a nexus between the Veteran’s SCC, lipomas, and/or BLE peripheral neuropathy and his exposure. In this case, apart from the Veteran’s and his wife’s lay statements, there is no evidence of record that tends to associate the disabilities with such exposure. Furthermore, while the Veteran is competent to provide statements regarding what he experienced, he is not competent to relate his current disabilities to exposure to herbicide agents, as that is an inherently medical question, involving the interaction of complex body systems with complex chemicals. The Board finds that a correlation is beyond the competence of any lay person. Therefore, the Veteran’s opinion as to nexus is afforded no probative value. Without competent evidence of a nexus, direct service connection for SCC of the right upper arm, lipomas or epidermoid cyst versus foreign body granuloma, and BLE peripheral neuropathy must be denied. The Board finds that the preponderance of the evidence is against granting service connection. As such, the benefit of the doubt doctrine is not applicable in this case. REASONS FOR REMAND The Veteran’s bilateral hearing loss was last evaluated at a VA examination in October 2016. There are no subsequent private or VA audiological evaluations of record. At the May 2019 hearing, the Veteran and his wife testified that his hearing had worsened since the last examination, noting increased difficulties hearing amid background noise and at higher tones. Under these circumstances, it is the Board’s conclusion that the Veteran should be offered a new VA hearing examination to determine the current extent and severity of his service-connected bilateral hearing loss. See e.g., 38 C.F.R. § 3.327(a) The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records, to include records since February 2017, and associate them with the claims file. 2. Schedule the Veteran for a VA audiological examination in order to determine the current severity of his bilateral hearing loss. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests, including an audiometric evaluation, should be conducted and the results reported in detail. The examination report should also address the lay statements of record and discuss the impact of his hearing loss on his activities of daily living and occupational functioning. 3. Following any additional indicated development, review the claims file and readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board, if otherwise in order. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.