Citation Nr: 20046852 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 13-12 064 DATE: July 13, 2020 ORDER Entitlement to service connection for a skin disability, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. FINDING OF FACT The competent and probative evidence of record does not show that the Veteran has, or has had a skin disability at any time during the appellate period. CONCLUSION OF LAW The criteria for service connection for a skin disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Army from December 1968 to November 1971 including service in the Republic of Vietnam. In addition, the Veteran served in the Army Reserves. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in September 2018 and were remanded for additional development, and as discussed below the Board’s prior remand instructions have not been substantially complied with only, as to the service connection claim for hypertension. The Board’s prior remand directives as to the Veteran’s claim for a skin disability have been substantially complied with and will be discussed in greater detail below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for a disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases including hypertension may also be established based upon a legal “presumption” by showing that it manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, Veterans 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. The Veteran served in the Republic of Vietnam during the applicable time period and as such exposure to herbicides is presumed. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin’s disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), Parkinson’s disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -7641 (2003). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Entitlement to service connection for a skin disability The Veteran contends that service connection is warranted for a skin disability, to include as due to exposure to herbicides in the Republic of Vietnam. In addition, the Veteran also contends that service connection is warranted for chloracne. The Veteran is competent to describe his ongoing symptoms, in-service duties and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran previously claimed service connection for keloids on his chest associated with aortic stenosis status post valve replacement, generally as part of his skin disability. However, during the appeal period service connection was granted for painful scars of keloids on the chest associated with his valve replacement surgery. As such, is a full grant of benefits sought as to the issue of service connection for keloids, the Board will not discuss such because this issue is no longer before the Board. As stated above, the first element of service connection is a current disability. The question for the Board is whether the Veteran has a current skin disability that began during service or is at least as likely as not related to an in-service injury, event or disease. The Board finds that the Veteran’s claim of service connection for a skin disability, to include chloracne must be denied, as the evidence of record does not show a diagnosis of a skin disability, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Board has conducted a thorough review of the Veteran’s service treatment records (STRs). The Board did not find any complaints, treatment, or diagnosis of any skin rashes or chloracne during service, nor any indication that the Veteran had a history of skin conditions prior to entering the service. At a report of medical examination during the Veteran’s Reserve service in December 1991, clinical evaluation of the skin was normal. As noted above, the Veteran served in the Republic of Vietnam during the applicable time period and exposure to herbicides as presumed. As such the Board finds an in-service event. The Board has reviewed all of the submitted private medical records on file, and has not found any complaint, treatment, or diagnosis of a skin condition. Likewise, the Board has reviewed the Veteran’s VA medical records, and likewise has not found any complaint, treatment or diagnosis of a skin condition. To the contrary, a March 2013, November 2013, May 2014, November 2014, September 2015, May 2016, November 2016, August 2017 and January 2019 Primary Care Attending Note stated that the Veteran’s skin had “no rashes.” See July 2014 CAPRI, pp 14, 6, 31, see also May 2019 CAPRI pp. 9, 29, 49, 62, 79, 99. Finally, as per September 2018 Board remand directives, the Veteran was provided a VA examination in November 2019. After performing an in-person examination, the VA examiner found that the Veteran did not have any skin conditions. The examiner stated: As to the Veteran’s claimed condition of a skin disability to include chloracne and claimed as rashes due to herbicide agent exposure there is no diagnosis because there are no findings, signs and or symptoms to support a diagnosis.” See November 2019 C&P Exam. The Board acknowledges that the Veteran believes that he has a skin condition, as evidenced by the filing of his claim. The Board notes that lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); see Buchanan, 451 F.3d at 1336. However, while the Veteran is competent to describe his experiences, he has not provided any lay evidence of the current nature, onset and cause for a skin condition. The medical findings of record are not consistent with his general assertion that he has a skin condition. There is no evidence of record that he has any current diagnosis of a skin condition. Congress specifically limits entitlement to service connection benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer, 3 Vet. App. at 225. As noted above, the Board notes the Veteran’s contentions and prior reports of keloids, which as discussed above, during the appeal service connection was granted. Further, the Board notes that the Veteran has generally reported an in-service rash and that this generally continued since. As to these general contentions of ongoing symptoms and manifestations the Veteran is competent to report ongoing symptomology. The Board assigns low credible weight to the reports because the Veteran had opportunities to report these symptoms and VA and private treatment records consistently noted no continuing symptoms were reported. Therefore, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for a skin condition, to include exposure to herbicides. While the Veteran believes his symptoms experienced in-service and since are indicative of a skin disability and related to an in-service exposure to herbicides, he is not competent to provide a nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion diagnosing a skin disability and linking current symptoms, if any, to an in-service injury and as such he is not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes the medical evidence is more probative and more credible than the lay opinions of record. Specifically, the November 2019 VA examiner noted no findings signs or symptoms to support a diagnosis of a skin disability to include chloracne. The examiner found no diagnosis of a skin disability. The examiner noted the Veteran’s presumed exposure to herbicides while serving in Vietnam and his reports of ongoing symptoms. The examiner found that the objective evidence did not support a finding of a current skin disability. Further, VA and private treatment records are absent indications of a skin disability, or ongoing symptoms. Thus, the more probative evidence of record indicates that the Veteran does not have a current skin disability and service connection is not warranted. The Board notes the Veteran had service in the Republic of Vietnam, however, presumptive service connection is not warranted as there is not a current relevant disabililty. As such, the Board finds that service connection for a skin disability, to include as due to herbicide exposure, is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS AND BASES FOR REMAND The Veteran contends that his hypertension was caused by his military service, to include as due to his service connected PTSD. The Board finds that a remand is warranted for additional development. In September 2018, the Board remanded the case and the regional office (RO) was directed to afford the Veteran a VA examination. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court has held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. Although on remand the RO obtained a VA examination and opinion, the RO did not substantially comply with the remand directives because the VA examination failed to fully address issues raised in the September 2018 remand. Specifically, the VA examiner was directed to consider direct service connection, as well as the possibility of the Veteran’s hypertension to be secondary to his service-connected PTSD. The September 2019 VA examiner noted that hypertension is not a Vietnam related service-connected condition related to herbicide exposure and found no nexus between the Veteran’s high blood pressure and service. However, the examiner failed to fully address direct service connection, and failed to provide a thorough rationale as to direct and presumptive service connection and a supplemental opinion is warranted. Hypertension is not currently a disease associated with herbicide exposure for purposes of the presumption. 38 U.S.C.§ 1116 (a)(2); 38 C.F.R. § 3.309. The National Academy of Sciences (NAS) has published “Veterans and Agent Orange: Update 11” (2018) in which the authors have found sufficient evidence of an association between hypertension and herbicide agent exposure. However, the Secretary has not expanded the scope of the presumption of service connection, and the Board has no authority to do so. Nevertheless, even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As such a remand is warranted for a supplemental opinion for clarification. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s hypertension. An in-person examination is not required unless deemed necessary by the clinician. The clinician must opine whether: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is caused by an in-service injury or disease, including herbicide exposure? (b.) Is it at least as likely as not that the Veteran’s high blood pressure (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The clinician must provide a detailed rationale for any opinion expressed. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). Attention is also invited to the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 11 (2018). NAS found sufficient evidence of an association between hypertension and herbicide exposure. However, the Secretary has not expanded the scope of presumptive service connection. K. R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.