Citation Nr: 21000297 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-56 917 DATE: January 5, 2021 ORDER 1. Entitlement to service connection for eczema is denied. 2. Entitlement to service connection for hypoxemia is denied. FINDINGS OF FACT 1. Eczema and hypoxemia are not diseases listed as associated with exposure to herbicide agents. 2. The Veteran is not shown to have (or during the pendency of this claim to have had) a skin disability, to include eczema, and there is no probative evidence that such disease may be etiology related to his service, to include as due to exposure to herbicide agents therein. 3. The Veteran’s respiratory disability (hypoxemia) was not manifested in service or for many years thereafter, and there is no probative evidence that such disease may be etiologically related to his service, to include as due to exposure to herbicide agents therein, or was caused or aggravated by his service-connected disabilities (including coronary artery disease (CAD)). CONCLUSIONS OF LAW 1. Service connection for eczema is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. Service connection for hypoxemia is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1970 to November 1974. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a July 2016 Department of Veterans Affairs (VA) rating decision. In March 2019, these matters were remanded for additional development. [The Board 2019 Board decision also granted service connection for CAD, resolving that matter.] The Board finds there has been substantial compliance with its March 2019 remand directives pertaining to these matters. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). Secondary service connection is warranted for a disability which is caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of: (1)the disability for which service connection is sought; (2) a disability that is already service connected; and (3) that the service connected disability caused or aggravated the disability for which service connection is sought. A Veteran who, during military service, served in the Republic of Vietnam during the Vietnam era (January 1962 to May 1975) is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). The presumptive provisions of 38 U.S.C. § 1116 have been extended to encompass veterans shown to have been otherwise exposed to tactical herbicide agents in service, including while serving in Thailand, or on the DMZ in Korea. Under VA Manual guidelines if a Veteran served in the U.S. Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Base (RTAFBs) (including Udorn RTAFB) as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, herbicide exposure is to be conceded. If there is no official documentation of service at a location that results in a presumption of exposure to herbicide agents, such exposure may be established on a facts-found basis. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Exposure is thus a matter of fact to be determined by the Board. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service and has contracted an enumerated disease, the veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Eczema, hypoxemia, and chronic obstructive pulmonary disease (COPD) are not listed as diseases entitled to a presumption of service connection based on exposure to herbicide agents under 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e). 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 layperson. 38 C.F.R. § 3.159 (a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. 4.3. When all the evidence is assembled, 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. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran alleges that his eczema and hypoxemia are related to exposure to herbicide agents in his duties at Camp Ramasun in Thailand, which was in close proximity to Udorn RTAFB. See August 2016 notice of disagreement (NOD) and April 2018 affidavit. The Veteran’s service treatment records (STRs) are silent for complaints, treatment, or diagnoses relating to a skin or respiratory condition. On October 1974 service separation examination, his skin and lungs were normal on clinical examination; no complaints were noted. An April 2015 private treatment record notes the Veteran’s complaint of shortness of breath and his report it seemed to start somewhat abruptly a couple of months ago. On examination, a skin rash was noted; the provider noted the Veteran’s chronic eczema was stable; the assessment was cardiopulmonary obesity syndrome, hypoxemia, and dyspnea on exertion. An April 2015 private CT scan of the Veteran’s chest found no evidence of a pulmonary embolism or an acute or focal cardiopulmonary abnormality. A May 2015 private treatment record notes the Veteran’s report that he works as a mining inspector, has a long history of working in underground mines, and had had engaged in hard rock and uranium mining; he reported he recently worked at an altitude of 10,000 feet altitude, and had shortness of breath, headache, and nausea for the entire 2 weeks he worked at that altitude. He reported a chronic cough. The assessment was dyspnea, hypoxemia, and chronic bronchitis. The provider opined the episode of shortness of breath may be related to working at 10,000 feet, maybe secondary to altitude sickness. The Veteran’s formal claim of service connection for, in part, a skin rash and a breathing condition was received in December 2015. A December 2015 private pulmonary assessment report notes the Veteran reported a 40-year history of smoking 1.5 packs per day, and that he quit smoking 4 years ago. The assessment was dyspnea and hypoxemia; the provider opined both disabilities are likely secondary to obesity with restrictive ventilator physiology. An August 2017 VA treatment record notes the Veteran’s complaint of a one-week cough for. The provider noted was on continuous oxygen for hypoxemia, and most likely has COPD, even though there is no official diagnosis of it. The March 2019 Board decision found the Veteran’s statements that he was exposed to herbicide agents while working on the perimeter of Camp Ramasum in Thailand competent and credible, and conceded that he was exposed to herbicide agents in service. On November 2019 VA examination (pursuant to the March 2019 Board remand), the provider opined that eczema is less likely than not related to service, to include as due to exposure to herbicide agents. The provider noted that the Veteran’s medical record since 2016 is silent for mention of rashes or a dermatologic diagnosis; and reviewed his October 2019 VA heart examination, noting that no rashes were found present. The provider concluded there was insufficient evidence to support a current diagnosis of eczema, and opined further that eczema [would be] unrelated to exposure to herbicide agents (as it is caused by an inherent genetic predisposition to skin sensitivity resulting in immune system inflammation and irritation from a variety of environmental exposures, from dust to animals, vegetation to a multitude of chemicals, each individual reactive to different exposures). The provider also opined that the Veteran’s hypoxemia is less likely related to his service or his service-connected heart disability. The examiner stated that based on a review of Cheyenne VA medical center (VAMC) records the diagnosis responsible for the Veteran’s hypoxemia is COPD. The examiner opined that his respiratory condition and cardiac conditions are non-causal and are independent of one another and opined that the respiratory disease is more likely related to the Veteran’s long history of cigarette smoking (noting he quit in 2011). At the outset, the Board notes that the Veteran’s file does not include updated (since those submitted in 2016) private treatment records. The March 2019 Board remand ordered development for such records (with the Veteran assisting by identifying any such treatment he received). A September 2019 VA letter to the Veteran requested him to identify all treatment providers for the appealed conditions, and to submit authorizations for VA to obtain records from any private providers. He did not respond; it is assumed that no such records exist (or that any existing records do not support his claim). The Board previously conceded that the Veteran was exposed to herbicide agents in Thailand; that finding will not be disturbed. What remains necessary to substantiate these claims is that he has a current skin disability and that each disability is etiologically related to his service or was caused or aggravated by a service-connected disability. 1. Entitlement to service connection for eczema is denied. The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought (here, a skin disability and a respiratory disability). See 38 U.S.C. § 1110. The evidence of record does not show that the Veteran has or at any time during the pendency of the instant claim has had a chronic skin disability, to include eczema or skin rashes. While an April 2015 private treatment record noted a skin rash and that his chronic eczema was stable, his medical records following his December 2015 formal claim do not show treatment for, or a diagnosis of, a skin disability, to include any manifested by rashes. The Board finds probative the opinion by the November 2019 VA examiner. The examiner expressed familiarity with the Veteran’s record/medical history, and included rationale that cites to accurate factual data, including the absence of reports of a skin condition on updated physical examinations or studies. The provider is a medical professional competent to offer the opinion. Moreover, the November 2019 VA medical provider explained that eczema would not be related to exposure to herbicide agents as it is caused by a genetic predisposition to skin sensitivity resulting in an immune system inflammation and irritation. The Veteran has not submitted any competent (medical opinion) evidence to the contrary. As a skin disability during the pendency of this claim is not shown, he has not presented a valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 233 (1992). 2. Entitlement to service connection for hypoxemia is denied. It is not in dispute that the Veteran has hypoxemia; treatment records clearly show such finding (first diagnosed in 2015, decades following his separation from service). His STRs, including his 1974 separation examination report are silent for complaints, treatment, findings, or diagnoses related to a respiratory disability. Whether, in the absence of a showing of manifestation in service and continuity since, a respiratory disability may be etiologically related to the Veteran’s remote service or was caused or aggravated by a service-connected disability is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The only competent (medical) evidence in the record regarding a nexus between the Veteran’s hypoxemia and his service and service-connected disabilities is in the November 2019 medical opinion, indicating that his respiratory condition is not due to exposure to herbicide agents and was not caused or aggravated by a service-connected disability (to include CAD). The provider indicated that the Veteran’s hypoxemia is more likely related to his nonservice-connected COPD, and that the COPD is likely due to his long history of smoking, and that his cardiac and respiratory conditions are non-causal and independent of each other. The opinion is probative evidence and, without competent evidence to the contrary, is persuasive. The record does not include any competent evidence that the Veteran’s hypoxemia might be etiologically related to his service or was caused or aggravated by a service-connected disability. Accordingly, the preponderance of the evidence is against this claim, and the appeal in the matter must be denied. Gilbert, 1 Vet. App. at 55. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.