Citation Nr: 20042866 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 16-53 653 DATE: June 24, 2020 ORDER Service connection for migraine headaches is denied. Service connection for a rash on the feet is denied. Service connection for skin infection of the groin is denied. REMANDED Service connection for hypertension is remanded. Service connection for chronic renal disease is remanded. FINDINGS OF FACT 1. Migraine headaches did not manifest in service or within one year of separation. The disability is not otherwise related to service to include presumed herbicide agent exposure in Vietnam. 2. Rash on the feet did not manifest in service. The disability is not otherwise related to service to include presumed herbicide agent exposure in Vietnam. 3. Skin infection of the groin did not manifest in service. The disability is not otherwise related to service to include presumed herbicide agent exposure in Vietnam. CONCLUSIONS OF LAW 1. The criteria for service connection for migraines are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for rash on the feet are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for skin infection of the groin are not met. 38 U.S.C. § 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to February 1970 to include service in Vietnam. He appeals a rating decision that denied these claims. In February 2020, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). The VLJ clarified the issues on appeal; clarified the concept of service connection; identified potential evidentiary defects; clarified the type of evidence that would support the Veteran’s claims, inquired as to the existence of potential outstanding records and granted the Veteran an additional 90 days following the hearing to submit evidence. No additional evidence has been received. The actions of the VLJ comply with 38 C.F.R. § 3.103. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime). In general, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases such as other organic diseases of the nervous system (which includes migraines) will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307 (a)(6)(i). Veterans who during active military, naval, or air service, served in the Republic of Vietnam are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Even if a Veteran does not qualify for the presumption of herbicide agent exposure, the Veteran may establish in-service exposure to an herbicide agent if the evidence indicates that it is at least as likely as not that such exposure occurred. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (holding that the availability of a presumption does not preclude establishing the same facts by evidence); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 1. Service connection for migraines is denied. The Veteran asserts that his migraine headaches began following his return from Vietnam. It is noted that he was discharged very close in time to his return from Vietnam in February 1970. However, migraine headaches are not initially reported or documented until some 14 years after service, and the preponderance of the evidence is against a relationship between his service and the migraines. The record establishes that the Veteran has current migraine headaches, first documented in medical records dating from 1984. See VA Agent Orange registry examination reports dated from January to April 1984. He reported at that time that these migraines, described as intense cephalgia, began when he returned from Vietnam. He also reported in a July 2014 VA treatment record that migraine headaches started when he came back from Vietnam. The Veteran testified before the undersigned that he began to have severe headaches when he returned from Vietnam in 1970, and they have continued since that time. He stated that he sought treatment in service but there is no record of such treatment. He has indicated that he has been unable to obtain copies of post service treatment records from the 1970’s. He explained in his VA form 9 that the treatment was in a small town in Puerto Rico and this has made it difficult to obtain copies of the records. He did not get copies of the records at the time of treatment because he was discouraged, trying to get his life back together and put the war behind him. While the Veteran was provided 90 days following the hearing to submit evidence of treatment closer in time to service, no additional records were received. Service treatment records (STRs) reflect no treatment or complaints for headaches. Indeed, the Veteran specifically denied current or a history of frequent or severe headaches at his February 1970 separation examination. Clinical examination of the head and neurological system were negative. Thus, while it is the Veteran’s general argument is that his present migraine headaches began after his return from Vietnam and continued to the present, there is documentation of migraines only from approximately 14 years after service, at which time he stated they began when he returned from Vietnam. The Veteran is competent to assert he has had headaches ongoing since service. See, e.g., February 2020 Hearing testimony. However, the Board finds the assertions to be not credible in view of his documented denial of headaches and negative separation examination in February 1970. Also weighing against his assertion is the lack of documentation of any complaints of headaches for 14 years after service. The Board concludes that, while the Veteran has migraines which are a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), they did not manifest in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board accords substantial probative weight to the competent medical evidence, the treatment record, which establishes that migraines first manifested years after service, and not during service or during any presumptive period. The treatment record is more probative than the Veteran’s assertions as to the lack of these disorders in service or for years following service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). Finally, while the Veteran asserts, without substantive argument, that his migraines are related to herbicide exposure in Vietnam, migraines are not presumptively associated with herbicide agent exposure under the aforementioned regulation. Additionally, he has not presented any competent evidence that his migraines are otherwise directly related to his exposure to herbicide agents in Vietnam. His assertions are not competent evidence that in-service exposure to herbicide agents caused migraines. While the Veteran believes his migraines are related to service, to include herbicide agent exposure, he is not competent to provide a nexus opinion in this case and there are no Jandreau type exceptions. This issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). A preponderance of the evidence is against the claim and there is no doubt to be resolved. 2. Service connection for a rash on the feet is denied. 3. Service connection for skin infection of the groin is denied. The issue for the Board is whether the Veteran has a current rash on the feet or skin infection of the groin that began during service or is at least as likely as not related to an in-service injury or disease or is related to presumed herbicide exposure in Vietnam. There is current disability inasmuch as the VA and private treatment record reflects some form of groin rash dating from 2013 as well as a rash of the feet noted in 2014 for which he is prescribed skin cream. Neither the rash on the feet nor skin infection of the groin is noted to be a chronic disease under 38 C.F.R. § 3.309(a), nor is either of these conditions recognized as a disability associated with herbicide exposure under 38 C.F.R. § 3.309(e). Corresponding presumptions do not apply. The question for the Board is whether the above conditions began during service or are at least as likely as not related to service, to include herbicide exposure. To the extent the Veteran believes either his rash on the feet or skin infection of the groin is due to service, and is competent to report pain and symptoms, the medical evidence indicating no relationship between current disability and service is far more extensive, reliable and credible than statements from a lay informant. Neither condition was present during his period of active service; STRs do not show any complaints of, treatment for, or diagnosis of rash on the feet or skin infection of the groin. While indeed he was seen in service for acne vulgaris of the face in January and February 1969, clinical examination of the face, feet and skin were normal during the February 1970 examination at separation. Also, he denied having or having had any skin diseases. The first mention of either his rash on the feet or skin infection of the groin is in the 1984 Agent Orange registry examination reports. At that time, he reported that he began having a rash in 1984 after taking medication. Tinea pedis and tinea cruris were noted. Therefore, the preponderance of the evidence is against finding that a nexus exists between the Veteran’s rash on the feet or skin infection of the groin and service. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Complaints that began over a decade after service have not been related to service by any competent evidence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Moreover, neither condition is related to service as set forth by any health care provider. The Board gives considerable probative weight to the competent medical evidence, here the treatment record, which shows that the rash on the feet and skin infection of the groin present now initially manifested years after service and are unrelated to service. The gap between discharge from active duty service and evidence of the disorders is viewed as a factor weighing against the claims. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran’s more current assertions to the contrary are less probative. He is not competent to opine as to the etiology of the conditions. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). A preponderance of the evidence is against the claims and there is no doubt to be resolved. While the Veteran asserts, again without substantive argument, that his rash on the feet and skin infection of the groin are related to herbicide exposure in Vietnam, again they are not presumptively associated with herbicide agent exposure under the aforementioned regulation. Additionally, he has not presented any competent evidence that they are otherwise directly related to his exposure to herbicide agents in Vietnam. His assertions are not competent evidence that in-service exposure to herbicide agents caused either skin condition and there are no Jandreau type exceptions. Again, the issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). REASONS FOR REMAND 1. Service connection for hypertension is remanded. The Veteran is generally seeking service connection by any available theory. One of the theories is that the Veteran’s hypertension is due to presumed exposure to herbicide agents during his service in Vietnam. See hearing transcript, p. 7. The Veteran’s representative referenced a recent national study favorable to this theory. The Board notes that a recent (November 2018) and relevant study by the National Academy of Sciences (NAS), Veterans and Agent Orange: Update 11 (2018), found sufficient evidence of an association for hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. Hypertension has been upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. No examination has been conducted for this claim. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether current hypertension is related to service, to include conceded herbicide agent exposure therein. Accordingly, a remand is necessary for VA examination. 2. Service connection for chronic renal disease is remanded. The Veteran also advances multiple theories in this claim, to include that his current chronic renal disease is proximately due to or aggravated by hypertension. Because a decision on the issue of service connection for hypertension being   remanded could significantly impact a decision on this issue, the issues are inextricably intertwined. A remand of this claim is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hypertension. The examiner must opine whether it is at least as likely as not related to service. The examiner should also opine whether it at least as likely as not began during active service or manifested within the initial year after discharge from service. The examiner should also opine whether the Veteran’s hypertension is at least as likely as not related to in-service herbicide agent exposure. The examiner should consider the NAS 2018 conclusion that hypertension has been upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. A complete rationale for all opinions is requested. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his   representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate action. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.