Citation Nr: 21001174 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-29 586 DATE: January 7, 2021 ORDER Service connection for hypertension, to include as due to herbicide agent exposure or aggravated by service-connected posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for a skin disorder, to include as due to herbicide agent exposure, is remanded. FINDINGS OF FACT 1. Hypertension clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated therein. 2. Hypertension was not caused or aggravated by the Veteran’s service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 101 (2), (24)(B), 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.1 (d), 3.6(a), 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1968 to April 1971.These matters come before the Board of Veterans’ Appeals (Board) on appeal of an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In December 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This matter was previously before the Board in January 2020, at which time it was remanded for further development, to include additional VA examinations. The requested examinations occurred in February 2020, with June 2020 addendum reports. Thus, the Board finds that there has been substantial compliance with its remand instructions and the claim can proceed to final appellate review. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Finally, as noted in the January 2020 remand, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran’s service-connected PTSD has been raised by the record. It was initially deferred in a March 2017 rating decision, pending further development by the RO. It is unclear from the record whether that development has yet been undertaken. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for entitlement to TDIU is considered before the Board when it is part of a claim for an increased rating. Here, the issues before the Board concern entitlement to service connection. Thus, jurisdiction over a claim of entitlement to a TDIU due to PTSD cannot be assumed by the Board under the holding in Rice, and it is once again referred to the RO for appropriate action. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See 38 C.F.R. § 3.304 (b); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, supra; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The term “noted” denotes only such disorders that are recorded in examination reports. The existence of disorders prior to the active military service reported by the veteran as medical history do not constitute a notation of such disorders, but it will be considered together with all of the other evidence in question as to the commencement of the disease or disorder. 38 C.F.R. § 3.304 (b)(1). Determinations of whether a disorder pre-existed the active military service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. Id. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides for all veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). In the instant case, the Veteran’s service personnel records reflect such service and therefore, he is presumed to have been exposed to herbicides. If a veteran was exposed to a herbicide agent during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. However, hypertension is not included in the list of diseases acknowledged to be presumptively related to herbicide exposure. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may also be established by showing that such disability was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. §§ 1113 (b), 1116 and 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his hypertension, which pre-existed service, was aggravated by his service. In the alternative, he claims that the condition was due to herbicide exposure, or was caused or aggravated by his service-connected PTSD. His service treatment records show that, upon examination at his entrance to service in January 1968, his vascular system was found to be normal. His blood pressure reading at that time was 132/80. On the accompanying Report of Medical History, the Veteran reported experiencing “high or low blood pressure.” As noted above, a disease must be found to pre-exist by medical examination; those which are noted on a Report of Medical History cannot be considered “pre-existing.” 38 C.F.R. § 3.304 (b)(1). However, in an August 2013 VA examination report, a VA physician determined that the Veteran’s hypertension clearly and unmistakably existed prior to service, but was clearly and unmistakably not aggravated beyond its natural progression by such. In support of this conclusion, he explained that the Veteran’s blood pressure at entry and exit were mildly elevated, but there was no treatment for any hypertension condition while the Veteran was in service. He was, in fact, not treated for hypertension until it was found to be elevated in 2009. The nearly 40-year gap between service and the initial treatment for a hypertension condition meant there could be no aggravation by service. In a March 2014 Disability Benefits Questionnaire submitted by the Veteran in September of that year, the diagnosis of hypertension was confirmed by a physician. However, this form contained no medical opinion regarding a nexus, if any, between the Veteran’s service or service-connected disabilities and his hypertension. In February 2020, in response to the Board’s remand the month prior, the Veteran underwent a VA examination. At that time, the diagnosis of hypertension was confirmed, with a pre-service onset. The examiner determined that the Veteran’s service-connected PTSD did not cause his hypertension. In a June 2020 addendum report, he explained further that PTSD is not considered a medical etiology for chronic blood pressure elevation nor is it considered an adequate explanation for aggravation of hypertension beyond its natural course. Rather, he explained, the Veteran’s morbid obesity was more likely the condition which aggravated his hypertension. The Board affords great probative weight to the August 2013 VA examination report, as well as the February 2020 VA examination report and its June 2020 addendum. These examinations and accompanying opinions are predicated on interviews with the Veteran, a review of the record, and a physical examination with diagnostic testing. In addition, the opinions considered the pertinent evidence of record, to include the statements of the Veteran, and provided complete rationales which relied on and citied to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no contrary medical opinion of record. Consequently, based on the foregoing, the Board finds that, while the presumption of soundness attaches, the Veteran’s hypertension clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated therein. Because of this finding, the Veteran’s claim that his conceded in-service exposure to herbicides caused his hypertension must fail, as the condition pre-existed any such exposure. Furthermore, while his hypertension was first symptomatic during service, the record clearly reflects that the condition is aggravated by the Veteran’s obesity and not any service-connected disability or herbicide exposure. To the extent the Veteran believes that his hypertension is related to his service or a service-connected disability, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of hypertension is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of causation of such disorder, to include whether such was aggravated by service, and/or was caused or aggravated by service-connected PTSD, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his hypertension is not competent evidence and, consequently, is afforded no probative weight. Therefore, as hypertension clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated therein, and was not caused or aggravated by a service-connected disability, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for hypertension and, as such, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. REASONS FOR REMAND The Veteran claims that he developed a skin rash as a result of his service, to include as due to exposure to herbicide agents. His service treatment records, to include a January 1968 entrance examination and April 1971 separation examination, are silent for any diagnosis or treatment of any issues related to the skin. VA treatment records from the appeal period show multiple diagnoses for skin disorders, including dermatitis, dyschromia, dandruff and dry skin. In March 2018 he was seen at VA for what was characterized as a “chronic rash.” In a May 2017 letter, the Veteran’s friend B.A., a registered nurse for 30 years, explained that the Veteran’s skin rash was chloracne, which developed due to herbicide exposure. At the December 2019 hearing, she testified that it was her belief that the Veteran’s skin conditions were related to his in-service herbicide exposure. In February 2020, the Veteran underwent a VA examination. At that time, the examiner acknowledged a past history of skin issues such as hemangioma, urticaria, atopic dermatitis and seborrheic keratosis. However, he determined that at the time of the examination, the Veteran did not have any present skin disorders. In a June 2020 addendum, the examiner explained that the Veteran’s skin issues were not related to his military service because they did not appear until several years after service, and that hemangioma is not considered a disease that is related to herbicide exposure. The Board must find the February and June 2020 examination reports are inadequate for purposes of deciding the Veteran’s claim. The requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Because the Veteran was diagnosed with multiple rashes during the pendency of the claim, the Board finds that he has a current skin disorder for the purposes of service connection. Additionally, a medical professional has suggested that the Veteran’s skin disorder may be chloracne, which is a disease subject to presumptive service connection in situations where, as here, the Veteran was exposed to herbicide agents. See 38 C.F.R. § 3.309 (a). Thus, clarification is necessary regarding this evidence. Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing whether the Veteran’s diagnosed skin disorders are related to his military service. The matters are REMANDED for the following action: Obtain an addendum opinion addressing the etiology of the Veteran’s skin disorder from an appropriate medical professional (other than the examiner who provided the February 2020 examination and June 2020 addendum, if possible). If it is not feasible to arrange for an in-person examination due to the COVID-19 global pandemic, the selected examiner should be asked to provide an opinion based solely on a review of the record, unless the examiner finds that such an opinion cannot be provided absent an in-person examination. Arrangements for a telehealth examination should also be considered, if possible. a) Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any of the Veteran’s diagnosed skin disorders, including but not limited to hemangioma, urticaria, atopic dermatitis and seborrheic keratosis, had its onset in, or is otherwise related to, his service. In offering such opinion, the examiner should accept that the Veteran has a current diagnosis of such skin disorders. b) The examiner is also asked to comment on the May 2017 letter from B.A., a registered nurse, in which she characterized the Veteran’s skin condition as chloracne. In providing the opinion, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. A rationale for any opinion offered should be provided. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.