Citation Nr: 20008237 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-39 189 DATE: January 30, 2020 ORDER 1. Entitlement to service connection for a skin disorder is denied. REMANDED 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for bilateral avascular necrosis of the hip is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a current skin disorder or that he has pain or symptoms that cause functional impairment in earning capacity. CONCLUSION OF LAW The criteria for service connection for a skin disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from November 1964 to November 1967. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2019. A transcript of the hearing was prepared and associated with the Veteran’s claims file. Service Connection 1. Entitlement to service connection for a skin disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. The Veteran contends that his skin disorder had its onset in service based on jungle rot and herbicide exposure while being stationed in Vietnam. The Veteran testified that once he returned from Vietnam, he started to have what he believed was eczema; however, he was informed that it was not eczema. Additionally, he testified that he had cortisone shots for his leg lesions and would break out all over his body. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a skin disorder. The reasons follow. As to evidence of a current disability, the preponderance of the evidence of record is against a finding that the Veteran has current a skin disorder, to include pain or symptoms that cause functional impairment that affects earning capacity. For example, there is no competent evidence in VA treatment records and private medical records that shows the Veteran has current a skin disorder or that he has been treated for a skin disorder and/or pain or symptoms associated with his skin during the appeal period. The Veteran reported that his skin condition was handled by Dr. Frederick Hardin in Atlanta, Georgia, during the 1970s. However, during his Board hearing, the Veteran testified that he does not “have any documentation to prove it.” A review of the Veteran’s medical records from Peter H’Doubler, Jr., M.D., show that the Veteran’s skin appeared within normal limits in the upper extremities and lower extremities in December 2012. Furthermore, the Veteran denied any “rash, itching, redness, ulcers, changes in skin color, abnormal skin lesion, changes in sizes and textures of previous moles” in August 2013, October 2014, and July 2016. Additional medical records from Dr. H’Doubler show that the Veteran denied symptoms related to the skin in December 2016. The clinical findings documented im these records do not show a current skin disorder or symptoms of a skin disorder. Additionally, the Veteran has not established that he has skin pain or symptoms that cause functional impairment affecting earning capacity. For example, the Veteran has not reported that he has had continuous medication or treatment provided for his skin disability. The preponderance of the evidence is against a finding of symptoms attributable to a skin disability. There is also no reported functional impairment, or functional pain that impacts his ability to work. Thus, the preponderance of the evidence is against the Veteran having a current disability or symptoms of a current disability, and the first element of a service-connection claim is not met. As an aside, VA attempted to obtain the medical records from Dr. Hardin and was informed that such records had been destroyed. Hence, for all the reasons laid out above, the preponderance of the evidence is against a finding that the Veteran has a current skin disability, to include pain or symptoms that causes functional impairment in earning capacity. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection for a skin disability, is denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for bilateral avascular necrosis of the hip. A review of the record discloses further development is needed. For example, in the VA Form 9, Appeal to the Board, received in September 2016, the Veteran informed VA that his primary physician was Dr. Curtis L. Champion. In November 2016, VA wrote to the Veteran requesting that he give VA permission to obtain Dr. Champion’s records and informed him that he could also obtain the records and submit them himself. The Veteran did not provide permission to obtain the records and did not submit the medical records. After the September 2019 hearing, the Veteran submitted an email from Dr. Champion. This is a reminder that VA does not have Dr. Champion’s medical records. As development is needed in connection with these two service-connection claims, the Board would request that the Veteran either provide VA with permission to obtain Dr. Champion’s records or submit them himself. Additionally, the Secretary of VA entered into an agreement with the National Academy of Science (NAS) Institute of Medicine to review and summarize the scientific evidence concerning the association between exposure to herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. The NAS submits a report to the Secretary every two years regarding the results of their review and summary of the medical literature. As relevant, in the latest report “Veterans and Agent Orange,” NAS moved hypertension from the “inadequate or insufficient evidence” category to the “limited or suggestive evidence” category. NAS has defined “limited or suggestive evidence of an association” to mean that the “evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” The Veteran told the undersigned he was claiming hypertension is related to his Agent Orange exposure, and thus these facts entitle him to a VA examination. In the November 2019 email from Dr. Champion, he attributed the Veteran’s left hip avascular necrosis to Agent Orange exposure and that it was “quite feasible” that the ongoing problems with the right hip are related to his “military exposure.” The Board finds that this opinion establishes entitlement to a VA examination in connection with this claim. Therefore, the matters are REMANDED for the following action: 1. Request that the Veteran provide VA permission to obtain medical records from the following private physicians: • Dr. Curtis Champion • And any other records that the Veteran identifies. VA has already obtained Dr. Kenneth Kress’s records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral avascular necrosis of the hip. The examiner is informed of the following facts: • The Veteran served on active duty from November 1964 to November 1967. • The Veteran served in Vietnam, and is thus presumed to have been exposed to Agent Orange and/or herbicides. • The September 1967 Report of Medical Examination completed approximately two months before service discharge shows that clinical evaluation of the lower extremities was normal. See VBMS entry with document type, “STR - Medical,” receipt date 06/18/2014, on page 21. • A September 1967 Report of Medical History completed by the Veteran approximately two months before service discharge is difficult to read; however, he denied a history of all the medical symptoms listed on this document, which include a history of broken bones and arthritis. See VBMS entry with document type, “STR - Medical,” receipt date 06/18/2014, on page 19. • A May 2005 medical record from Kenneth J. Kress, M.D. shows that he documented that the Veteran had had problems with his hips from “at least August 2004” with no apparent injury. Dr. Kress noted that another doctor had diagnosed the Veteran with avascular necrosis of both hips, which was confirmed by a different physician. Dr. Kress noted that the Veteran did not have any specific blood tests done for the avascular necrosis. Dr. Kress documented that the Veteran reported he was a “heavy drinker for about one year” when he returned from Vietnam and then stopped drinking. The Veteran denied any significant exposure to steroids. Dr. Kress noted that the Veteran had a history of sickle cell trait in his family. He also noted that the Veteran reported that his right hip did not bother him, but the left was becoming more symptomatic over the last year. Dr. Kress entered impressions of avascular necrosis of the right and left hips, left symptomatic, with degenerative arthritis and collapse. See VBMS entry with document type, “Medical Treatment Record – Non-Governmental Facility,” receipt date 03/23/2017, on pages 19-20. • In this same document, Dr. Kress wrote that he discussed the etiology of bilateral avascular necrosis of the hip with the Veteran and explained that “we still have very little understanding of what actually causes the process. In that regard, I explained that I have sent several patients to Dr. Daniel Dubovsky for blood tests, to see if we can find any markers for bilateral avascular necrosis of the hip. Certainly that is useful for getting data, but the overall treatment plan remains the same.” See VBMS entry with document type, “Medical Treatment Record – Non-Governmental Facility,” receipt date 03/23/2017, on page 20. • The Board does not know if the Veteran went to see Dr. Daniel Dubovsky. • The Veteran underwent a total left hip replacement in June 2005. • The Veteran has stated that there have been more than a thousand studies showing veterans who have been exposed to Agent Orange or Dioxin show a higher rate of impaired blood supply, which is directly related to his diagnosed bilateral avascular necrosis of the hip. See VBMS entry with document type, “Form 9,” receipt date 09/23/2016, on page 2. • In a November 2019 email from Curtis Champion, M.D., he wrote that the Veteran’s left hip bilateral avascular necrosis of the hip is more likely than not related to exposure of Dioxins. “This is in light of the known association of Dioxin exposure and development of peripheral neuropathies and microvascular disease leading to undue impact damage to the left hip.” He added that “due to the unpredictable duration of the long half-life of Dioxins in the environment and human body, it is quite feasible that his ongoing problems with his right hip are related to his military exposure.” See VBMS entry with document type, “Medical Treatment Record – Non-Governmental Facility,” receipt date 11/19/2019, on page 2. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral avascular necrosis of the hip had its onset in service from November 1964 to November 1967? Upon what facts and medical principles do you base your opinion? (b.) If the answer to (a.) is negative, is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral avascular necrosis of the hip is caused by the exposure to Agent Orange in the service? Upon what facts and medical principles do you base your opinion? All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule the Veteran for a VA examination for purposes of determining the current nature, extent and etiology of any currently diagnosed hypertension. The examiner should be informed of the following: • The Veteran served on active duty from November 1964 to November 1967. • The Veteran served in Vietnam, and is thus presumed to have been exposed to Agent Orange and/or herbicides. • The September 1967 Report of Medical Examination completed approximately two months before service discharge shows that clinical evaluations of the heart and vascular system were both normal. His blood pressure reading at that time was 124/62. See VBMS entry with document type, “STR - Medical,” receipt date 06/18/2014, on pages 21-22 (blood pressure reading is on page 22, item #57). • A September 1967 Report of Medical History completed by the Veteran approximately two months before service discharge is difficult to read; however, he denied a history of all the medical symptoms listed on this document, one of which is a history of high or low blood pressure. See VBMS entry with document type, “STR - Medical,” receipt date 06/18/2014, on page 19. • The Veteran testified that he was diagnosed with hypertension in 1973 or 1974. See VBMS entry with document type, “Hearing Transcript,” receipt date 09/18/2019, on page 6. • The earliest documentation of hypertension in the medical records is from May 2005, when Dr. Kenneth Kress documented a past medical history of hypertension. See VBMS entry with document type, “Medical Treatment Record – Non-Governmental Facility,” receipt date 03/23/2017, on page 19. • In a 2018 update, the National Academy of Science (NAS) Institute of Medicine has found “limited or suggestive” evidence of a relationship between exposure to herbicide agents and the development of hypertension. The link to the NAS study is located here: https://www.nap.edu/read/25137/chapter/12. • Hypertension is discussed beginning on page 487, which page number may be entered at the top of the website where it says, “Page # of 716” at the top where it says, “Contents.” (Enter the page number where the “#” is located.) The examiner should review the claims file, interview and examine the Veteran, conduct any appropriate testing, and offer opinions regarding the directives below: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset in from November 1964 to November 1967? Upon what facts and medical principles do you base your opinion? (b.) If the answer to (a) is negative, is it at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused by his exposure to herbicide agents in Vietnam? The examiner is to consider the NAS’s latest report on Veterans and Agent Orange that moved hypertension from the “inadequate or insufficient evidence” category to the “limited or suggestive evidence” category. The examiner is further advised of the fact that hypertension is not presumptively associated with herbicide exposure under VA regulations cannot serve as the sole basis for a negative opinion. It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.