Citation Nr: 21003737 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-39 205 DATE: January 22, 2021 ORDER Entitlement to service connection for bladder cancer as due to herbicide exposure is granted. Entitlement to service connection for a skin condition, formerly claimed as chloracne, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran’s bladder cancer is presumptively related to service due to the Veteran’s herbicide exposure. 2. The probative medical evidence of record does not show that the Veteran’s skin conditions are related to his active service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bladder cancer, to include as due to herbicide exposure, are met. 38 U.S.C. §§ 1110, 1116(a); 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a skin condition, formerly claimed as chloracne, to include as due to herbicide exposure, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in May 2018. In a July 2018 decision, the Board denied service connection for right ear hearing loss, hypertension, bladder cancer, and chloracne. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In April 2019, the Court granted the parties’ Joint Motion for Remand (JMR) and remanded the issues back to the Board. In September 2019, in accordance with the JMR, the Board remanded the issues of entitlement to service connection for right ear hearing loss, hypertension, a skin disability, and bladder cancer, and requested the RO obtain VA records that were not previously associated with the Veteran’s claims file. In October 2020, the RO granted service connection for bilateral hearing loss and hypertension, which was considered a full grant of the issues sought on appeal. As such, those issues are no longer before the Board for consideration. The requested development having been completed; the matters have been returned to the Board. Service Connection The Veteran contends that his bladder cancer and skin condition are related to his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, those Veteran’s exposed to an herbicide agent shall be service connected for the diseases listed at 38 U.S.C. § 1116(a)(2); and 38 C.F.R. § 3.309 (e), which include, among many others, bladder cancer. See The National Defense Authorization Act for Fiscal Year 2021. Exposure to an herbicide agent is presumed for a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, absent affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)6(iii). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Bladder Cancer Military records established the Veteran served in Vietnam. Therefore, he is presumed to have been exposed to herbicide agents. The Veteran also was diagnosed to have bladder cancer in 2010. While his bladder cancer has been successfully treated, bladder cancer has been shown and the Veteran continues to receive residual care for it. As bladder cancer is presumed to be service connected from herbicide agent exposure, service connection for bladder cancer is warranted in this case, and the appeal of this issue is granted. 2. Skin Condition The Veteran contends he has a skin condition that is due to his service, including as due to herbicide exposure. Regarding the Veteran’s claim of exposure to herbicide agents causing his skin condition, the Board notes that the skin conditions that are present in the Veteran’s history are not listed as diseases recognized as being presumptively related to herbicide agent exposure. 38 C.F.R. § 3.309(e). Nonetheless, the Veteran is not barred from receiving compensation if the medical evidence establishes a nexus between a skin diagnosis and exposure to chemical herbicides. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran was not treated for any skin condition in service, or for many years after. The Veteran indicated in his application for benefits that he received treatment from a doctor for chloracne or similar acneform disease. There is, however, no evidence in the record of treatment or a diagnosis of chloracne or acneform disease. The first indication of treatment for a skin condition was in 2001, when the Veteran was treated for verruca. His treatment for various skin conditions continued until 2012, with records from the Veteran’s dermatologist noting skin tags, angiomas, and seborrheic keratosis. The doctor’s notes indicate that some of these skin conditions were biopsied; all results indicated the growths were benign. The Veteran’s private physician completed a disability benefits questionnaire in July 2012. At that time, the Veteran’s diagnosed skin conditions were tinea pedis, onychomycosis, and seborrheic keratosis. The physician specifically stated that the Veteran did not have acne or chloracne. He did not note if any condition was at least as likely as not related to the Veteran’s active military service. In 2013, VA treatment records indicated the Veteran experienced dry skin. No additional evidence regarding skin conditions after 2013 is of record. The Veteran testified at the May 2018 hearing that he had “black spots” on his face, but that he did not recall specific diagnoses from his providers. He additionally noted that no provider connected his conditions to herbicide agent exposure. In sum, there is no evidence that presumptively connects the Veteran’s skin conditions to his active service based upon his exposure to herbicide agents and there is no other evidence (apart from the Veteran’s contentions) to support a connection between the Veteran’s skin conditions and his active service, to include herbicide exposure. The skin conditions were initially diagnosed many years after the Veteran’s service and there is no competent medical evidence of a causal connection between any current disorder and the Veteran’s active service. While the Veteran may believe that such a causal connection exists, he is not competent to make such a complex medical finding. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that the Veteran has not been provided a VA examination regarding his claimed skin conditions. However, the Board concludes that an examination and medical opinion are not needed to fairly decide this claim, as the record contains no competent and credible evidence suggesting that the Veteran’s skin conditions are linked to herbicide exposure, or to service. Even considering the low threshold established in McLendon, the evidence does not rise to the level necessary to warrant a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the claim for service connection for a skin disorder must be denied on both a presumptive and a direct basis. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, 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.