Citation Nr: A20009136 Decision Date: 05/21/20 Archive Date: 05/21/20 DOCKET NO. 191114-44094 DATE: May 21, 2020 ORDER Entitlement to service connection for hypertension (HTN), to include as due to exposure to designated herbicide agents and/or as secondary to service-connected disabilities, is denied. Entitlement to service connection for squamous cell carcinoma, to include as due to exposure to certain herbicide agents, is denied. FINDINGS OF FACT 1. HTN did not manifest in active duty service or within one year of separation from active duty service. HTN is not otherwise attributable to active duty service, to include as due to exposure to certain herbicide agents. HTN was not proximately caused by, or aggravated by, service-connected disabilities. 2. Squamous cell cancer is not related to service, to include as due to exposure to certain herbicide agents CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for HTN have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). 2. The criteria for entitlement to service connection for squamous cell carcinoma have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Air Force from February 1972 to January 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2019 Appeals Modernization Act (AMA) rating decision. The Veteran timely appealed this rating decision to the Board by requesting the AMA Direct Review lane for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). In the October 2019 AMA rating decision, the AOJ found that the Veteran submitted new and relevant evidence that tends to prove or disprove a matter at issues in his HTN service connection claim pursuant to 38 C.F.R. § 3.2501. While the Board does not dispute the fact that new evidence has been associated with the Veteran’s claims file, the Board notes that the prior decision, which denied entitlement to service connection for HTN, was issued in August 2019. Thus, it was not final and there was no issue of readjudication before the AOJ. Service Connection The Veteran contends the squamous cell carcinoma and HTN were incurred in, aggravated by, or otherwise attributable to, active duty service. Further, he contends that HTN and squamous cell carcinoma are due to exposure to certain herbicide agents. And, alternatively, the Veteran contends that HTN was proximately caused by, or aggravated by, service-connected disabilities (service-connected posttraumatic stress disorder; diabetes mellitus type II; coronary artery disease; and these disabilities’ pharmaceutical treatments). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). 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 will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases—to include HTN—may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A review of the Veteran’s service department record discloses that his miliary occupational specialty (MOS) was an aircraft maintenance specialist with service in Korea and the Philippines. In October 2019, the RO made a favorable finding that the Veteran was exposed to designated herbicide agents through regular and repeated duties flying on or maintaining aircraft used to spray certain herbicide agents in the Republic of Vietnam. The Board is bound by this favorable finding. In the case of a Veteran exposed to certain herbicide agents, service connection for certain enumerated diseases will be presumed if they become manifest to a degree of 10 percent or more within a specified time period. See 38 U.S.C. § 1116 (2014); 38 C.F.R. §§ 3.307, 3.309. Neither squamous cell carcinoma nor HTN are diseases enumerated under the provisions noted above. Evidence and Analysis Blood pressure measurements are expressed as systolic divided by diastolic pressure in millimeters of mercury (mmHg). A review of the Veteran’s service treatment records (STRs) reveals that in a July 1973 Dental History Report, the Veteran indicated that he had never been treated for high blood pressure. In October 1973, a clinician prescribed podophyllum 20 percent to treat the Veteran’s penile warts. In January 1974, a clinician noted that the Veteran has been under treatment for pruritis, which displayed papular eruptions, generalized on his arms and his legs. This clinician indicated that an antihistamine provided relief. This same month, a clinician noted that there was no improvement in the Veteran’s facial acne. The Veteran also endorsed itching all over his body. Also, in January 1974, a clinician reported that the Veteran had gonorrhea 5 times over the last year; had multiple itching sores over his body, including his penis; and a suspected diagnosis of syphilis. Treatment consisted of calamine lotion and hydrocortisone ointment, followed by Temaril. The Veteran’s blood pressure was 102/58 in February 1974. The same month, a clinician opined that the Veteran’s history of pruritic eruptions, which began in the latter part of December 1973 was probably a scabies infestation. Treatment consisted of Kwell salve. Other STRs disclose that the Veteran sought treatment for tinea cruris; tinea pedis; tinea versicolor; and groin rash with cyst-like growths in 1975. In September 1975, a clinician reported that the Veteran has had a growth on his testicles for the past two months, without discharge. Upon consultation, this growth was reported as a sebaceous cyst on the Veteran’s scrotum. In a July 1975 Discharge Examination, an examiner noted that the Veteran’s vascular system and his skin were normal. The Veteran’s blood pressure while sitting was 108/64. In the associated Discharge Report of Medical History, the Veteran indicated that he had not had and did not have high or low blood pressure or tumor, growth, cyst, or cancer. The Veteran did indicate that he had a skin disease. In the medical summary at the end of this report, a military doctor indicated that “skin disease” referred to marks and patches, which had been treated with no complications or sequelae. In March 2018, VA received more than 200 pages of private medical records from Dr. N. of P.C. and from R. The collection of private records dates from 2013. Excerpted portions of these records with emendations were resubmitted on two additional occasions. Scrutiny of these records discloses that the Veteran had received a clinical diagnosis of essential HTN. The Veteran had also received treatment for pityriasis versicolor. While these records show that the Veteran received extensive clinical services, including testing and pharmaceutical reconciliation, they do not disclose the etiology of the assessed essential HTN. None of the clinicians indicated awareness of herbicide exposure or attributed the disease to herbicide exposure. In April 2019, VA sent correspondence to the Veteran seeking a medical opinion which reveals a relationship between HTN and dioxin (chemical agent in certain herbicides). The letter stipulated that this medical opinion should include reasons and bases; clinical treatment records; and provides literature (scientific or medical journal articles) that support the opinion that the Veteran’s “exposure to certain herbicide agents” is related to currently diagnosed HTN. The Board indicated a 30-day window to submit this evidence, otherwise a rating decision would be rendered without it. See April 10, 2019 Subsequent Development Letter. In April 2019, VA received another file of private medical records. These records show that Dr. N. continued his clinical treatment of the Veteran, especially in the field of orthopedics. Throughout these records, Dr. N. indicated that the Veteran has no known environmental risks for cancer—other than tobacco. These records do not respond to the medical opinion requested above. There were no reports by the Veteran or comments by the clinician regarding herbicide exposure. In June 2019, the Veteran was afforded a VA HTN examination. A physician reviewed the claims file; considered the Veteran’s subjective accounts; and conducted an evaluation. The physician indicated a current diagnosis of HTN as of 2013. In June 2019, the Veteran was afforded another VA HTN examination. A clinician reviewed the claims file; considered the Veteran’s subjective accounts; and conducted an evaluation. Upon consideration of the totality of evidence, to include instant examination medical findings, this clinician opined that the current severity of the Veteran’s HTN was not at least as likely as not aggravated beyond its natural progression by a service-connected disability. As a rationale for this negative nexus opinion as to secondary service connection, the clinician opined that the Veteran’s baseline blood pressure readings were consistently elevated prior to the Veterans myocardial infarction and coronary artery disease. In September 2019, VA received two pages from P.S.C., a private plastic surgery provider. These pages reveal that the Veteran had received a diagnosis of superficially invasive squamous cell carcinoma on his left fourth digit toe. The provider indicated that the Veteran underwent an excision procedure in August 2019. Progress notes (first page) indicate minimal blood loss; local anesthesia; and no complications. In September 2019, VA sent another letter to the Veteran. In pertinent part, VA sought information as to the earliest symptoms of squamous cell carcinoma; the Veteran’s treatment since discharge for this disability; and medical evidence that shows that the diagnosis and earliest symptoms of squamous cell carcinoma resulted from the Veteran’s exposure to herbicides, Further, VA indicated that it may consider treatment for squamous cell carcinoma on February 23, 1972 to January 1975 as associated with dioxin exposure if the Veteran would send in either scientific or medical evidence showing that squamous cell carcinoma is medically associated with dioxin exposure. Moreover, if performed, VA requested an opinion analogous to the opinion requested in April 2019 (now pertaining to squamous cell carcinoma). In October 2019, the Veteran submitted a lay statement. In pertinent part, he reported that legislation has determined that Air Force members with regular and repeated C-123 aircraft duties during the recognized timeframe were exposed to Agent Orange. The Veteran stated that he was claiming a skin condition that took longer to present itself. As such, the Veteran contended squamous cell carcinoma should not be held to the same principles as one year to be present after service in Vietnam. The Veteran did not identify any specific legislation or medical evidence as to delayed presentation. And, this lay account did not respond to the September 2019 letter, as spelled out above. In a November 2019 lay statement, the Veteran contended that several environmental issues contributed to his “skin condition” in the early 1970s of which the government was unaware wherein no protection was provided. The Veteran also stated that hot and cold weather in service contributed to his squamous cell carcinoma. Further, as to HTN, the Veteran stated that service-connected posttraumatic stress disorder, diabetes mellitus, coronary artery disease, and medications elevate his hypertension (sic). The Veteran contends that HTN and squamous cell carcinoma were incurred in, aggravated by, or otherwise attributable to, active duty service. However, as a lay person, the Veteran lacks the specialized scientific training and medical prowess to render such etiological opinions. See Jandreau, Routen, both supra. The Veteran’s sincerely held belief in onset or causation by active duty is not competent evidence, as it is far outside of his area of knowledge and expertise. As the Veteran has not been diagnosed with an enumerated disease, presumptive service connection based upon exposure to certain herbicide agents is not for application here. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. As HTN was not diagnosed within one year of the Veteran’s separation from service, service connection for HTN is not warranted on a presumptive basis. See id. While entitlement to service connection is not warranted based upon presumptive service connection, entitlement to service connection may still be established with proof of direct causation. See Combee, supra. Although the Veteran had penile warts; pruritis; papular eruptions; facial acne; multiple itching sores; probable scabies infestation; tinea cruris; tinea versicolor; groin rash; and a scrotal sebaceous cyst, it appears that these skin disorders were resolved by the time of the Veteran’s July 1975 Discharge Examination. Even though a military doctor indicated that endorsed “skin disease” refers to marks and patches, such had been treated with neither complications nor sequelae. Moreover, the Veteran has not provided medical opinions—to include reasons and bases; clinical treatment records; and literature (scientific or medical journal articles)—that support the Veteran’s lay account that exposure to certain herbicide agents is related to HTN or squamous cell carcinoma. None of his private care providers noted an awareness of this exposure or that the Veteran attributed his disease to the exposure as would be expected to be noted by an attending clinician. In response to VA’s requests, the Veteran has produced additional lay accounts and clinical treatment records that do not suggest that either of these current disabilities is due to exposure to certain herbicide agents. While the Board acknowledges the Veteran’s diverse theories from “unknown” environmental issues to legislation concerning Air Force members with regular and repeated C-123 aircraft duties, the Veteran has produced no competent medical, scientific, or legislative evidence to support any of the theories that the diseases were caused by herbicide exposure. “The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the same way, the Veteran has produced no competent evidence to support his contention that HTN “was elevated by” (presumably aggravated by) service-connected posttraumatic stress disorder; diabetes mellitus type II; coronary artery disease; and these respective disabilities’ associated pharmaceutic treatments. As a lay person, the Veteran lacks the highly specialized multi-disciplinary medical training to render such a complex etiological opinion. See Jandreau, Routen, both supra. Therefore, the Board finds that there is simply no competent evidence to support a grant of service connection for HTN on a secondary basis. See Allen, supra. Here, the Board assigns substantial probative weight to the negative nexus opinion of the June 2019 VA clinician. This medical professional reviewed the claims file; considered the Veteran’s subjective accounts; and conducted an evaluation. Upon consideration of the totality of evidence, this expert clinician opined that the current severity Veteran’s HTN was not at least as likely as not aggravated beyond its natural progression by a service-connected disability. As a rationale for this negative nexus opinion as to secondary service connection, the clinician opined that the Veteran’s baseline blood pressure readings were consistently elevated prior to the Veterans myocardial infarction and coronary artery disease. This clinician’s rationale was based upon actual medical findings and evidence of record. Accordingly, the preponderance of evidence is against granting service connection for the Veteran’s two service connection claims. As such, the benefit of doubt doctrine is not for application in this case. See 38 U.S.C. § § 5107; Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.