Citation Nr: 21062795 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-34 251 DATE: October 12, 2021 ORDER Service connection for skin cancer is denied. Service connection for chronic bronchitis is denied. REMANDED Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The Veteran had service in Vietnam and is presumed to have had herbicide exposure in service, but the claimed skin cancer and bronchitis are not presumptively related to herbicide exposure. 2. Symptoms of skin cancer and bronchitis were not continuous or recurrent in service or since service separation; and there is no medical nexus between the skin cancer or bronchitis and active service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer have not been met. 38 U.S.C. §§ 101, 1101, 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for chronic bronchitis have not been met. 38 U.S.C. §§ 101, 1101, 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from August 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from September 2014 and December 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board remanded this case for further development. The development requesting having been completed, the case is now appropriate for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection can also be presumed if a veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.309(e). In this case, although the Veteran had service in Vietnam, the evidence does not demonstrate, nor has the Veteran contended, that he has been diagnosed with any of the conditions subject to presumptive service connection due to herbicide exposure under 38 C.F.R. § 3.309(e). However, if there is no presumptive service connection available, such as for the claimed erectile dysfunction, skin cancer, and bronchitis, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C. § § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). 1. Service connection for skin cancer is denied. 2. Service connection for chronic bronchitis is denied. The Veteran contends that his claimed skin cancer and chronic bronchitis either began during active service or was caused by exposure to herbicides (Agent Orange) during active service. An April 1969 Award of the Bronze Star Medal for Heroism indicates the Veteran served with an Assault Helicopter Company and in January 1969, flew in a helicopter and engaged in direct combat with the enemy in Vietnam. Thus, although he has not been diagnosed with any of the conditions presumptively related to herbicide exposure, he is presumed to have been exposed to herbicides. For the reasons discussed below, the Board finds that the weight of the evidence is against a finding of a medical nexus between the current skin cancer or bronchitis and active service, including as due to herbicide exposure. Reviewing the most relevant evidence of record, service treatment records show that the Veteran was treated for an upper respiratory infection in September 1966, April 1967, and June 1968; a September 1968 chest x-ray was normal. In January 1967, the Veteran was diagnosed with viral eczema and rubeola. At the May 1969 separation examination, clinical evaluation of the lungs, chest, and skin were marked as normal, and the Veteran denied skin diseases, chronic or frequent colds, asthma, shortness of breath, chronic cough, and tumors, growths, cysts, or cancer. Following separation from service, in March 2011, the Veteran sought treatment for a facial non-healing ulcer that had been present for 2 years. He denied any personal history of skin cancer, stating that he had had moles biopsied in the past but all biopsied had been normal and he had not received any treatment. A current biopsy of the facial lesion revealed that it was a squamous cell carcinoma, and it was removed in April 2011. The Veteran also had a melanoma on his back removed in June 2016; at that time, it was noted that he had a history of "many" basal cell carcinomas. The Veteran was diagnosed with bronchitis in March 1999, January 2000, April 2002, and October 2013. An October 2013 chest x-ray taken to rule out pneumonia revealed mild linear atelectasis or fibrotic scarring at the left base, enlarged left hilar area, and elevation of the hemidiaphragms. A December 2015 VA treatment note indicates that the Veteran had physical health limitations due to bronchitis, among other conditions, although this appears to be a notation based on the Veteran's report rather than any physical findings. Pursuant to the Board's remand directives, the Veteran was afforded a VA skin examination in October 2020. The examiner diagnosed tumors or neoplasms of the skin, including malignant melanoma (2020). The Veteran reported that he had had multiple precancerous lesions removed from his body since early 1998, but then stated that the first excision was performed about 5 years prior. He had a melanoma on his back. His other skin cancers have been removed from his face, arms, and hands. He reported no complications from any of the excisions, and no further treatment had been rendered. Resolved skin conditions included basal cell carcinoma, squamous cell carcinoma, and melanoma. On physical examination, the Veteran did not have any visible characteristic lesions, and the examiner also indicated that he did not have a skin condition currently without any visible characteristic lesions at the time of the examination. VAMC and Kaiser records suggested skin cancers in the past were removed and were now resolved. The Veteran had residual scars from the skin cancer. The examiner opined that the skin cancer was not related to active service, including herbicide exposure, reasoning that the type of skin cancers diagnosed were due to UV light exposure over time and had not been shown to be caused by Agent Orange. The examiner added that some cancers, but not skin cancers, had been shown to have an increased prevalence and severity for those who had Agent Orange exposure, citing to medical literature. The Veteran was also afforded a VA respiratory examination in October 2020. The examiner diagnosed bronchitis, resolved (2013). The Veteran reported an intermittent dry cough and dry throat which he noted was worse with his CPAP. He reported that he had a respiratory infection in basic training. He denied bronchitis or pneumonia for the last several years. He was unsure if he had been diagnosed with asthma, but he noted that it ran in his family. He smoked from the age of 18 to 22, about 4 years. He reported shortness of breath at all times, worse with activity such as walking. He reported that in the past, some of his shortness of breath had been attributed to his heart conditions including atrial fibrillation. There were no current symptoms of bronchitis. He had been prescribed albuterol for shortness of breath in the past. His condition did not require use of oral or parenteral corticosteroid medication, inhaled medication, or oral bronchodilators. A 2013 chest x-ray was normal. A PFT was performed as part of the examination. The examiner noted that although the Veteran had previously been diagnosed with acute bronchitis, he did not meet diagnostic criteria for chronic bronchitis, reasoning that PFTs indicated that he was a former smoker since 1965, that he had a BMI of 35.5, and poor session quality which should be interpreted with care. Post bronchodilator spirometry was normal. The examiner opined that the claimed chronic bronchitis was not related to active service, including herbicide exposure, reasoning that Agent Orange had not been shown to add additional risk to the development of bronchitis, citing to medical literature. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a finding of a medical nexus between the current skin cancer or bronchitis and active service, including herbicide exposure. First, the preponderance of the evidence demonstrates that symptoms of the claimed disabilities were not continuous or recurrent in service. As noted above, service treatment records showed several episodes of upper respiratory infections (but no diagnosis of bronchitis) and an episode of viral eczema during active service, but symptoms of these conditions were not continuous or recurrent. Indeed, the May 1969 separation examination was negative for any findings pertaining to either bronchitis or skin cancer, and the Veteran denied any symptoms that could be attributable to the claimed disabilities. The Board next finds that the preponderance of the evidence demonstrates that symptoms of the claimed disabilities were not continuous or recurrent since separation from active service in 1969. Following separation from service in 1969, the evidence of record does not show any complaints, diagnosis, or treatment for skin cancer until 2011, and bronchitis until 1999. The absence of post-service complaints, findings, diagnosis, or treatment for the claimed disabilities for many years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of the claimed disabilities after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence demonstrating that symptoms of the claimed disabilities have not been continuous or recurrent since service separation includes the March 2011 treatment note indicating that the Veteran denied any previous diagnosis of or treatment for skin cancer in the past. Moreover, at the October 2020 VA respiratory examination, the Veteran denied having been diagnosed with bronchitis or pneumonia for the past several years. These statements made by the Veteran provide highly probative evidence that he did not experience symptoms of the claimed skin cancer or bronchitis continuously since active service. To the extent that the Veteran's more recent assertions made in the context of the current disability claim can be interpreted as an assertion of continuous or recurrent symptoms of the claimed disabilities since service, the Board finds that these more recent assertions are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's assertions of continuous or recurrent symptoms of the claimed disabilities after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records, which show several episodes of upper respiratory infections and an episode of viral eczema which resolved prior to separation from service and are entirely negative for any diagnoses of either skin cancer or bronchitis; the March 2011 treatment note indicating that the Veteran denied any prior diagnosis of or treatment for skin cancer; the October 2020 VA respiratory examination report indicating that the Veteran denied having been diagnosed with either bronchitis or pneumonia for the past several years; and the lack of any documentation of reports or treatment for the claimed disabilities for many years after service separation, outlined above. As such, the Board does not find that the evidence sufficiently supports continuous or recurrent symptoms of the claimed skin cancer or bronchitis since service so as to warrant a grant of service connection. Finally, the Board finds that the weight of the competent medical evidence weighs against a finding of a medical nexus between the current skin cancer and bronchitis and active service, including as due to herbicide exposure. In this regard, the Board finds that the October 2020 VA nexus opinions, discussed above, are the most probative evidence of record. The VA opinions are competent and probative medical evidence because they are factually accurate and are supported by adequate rationale. The VA examiner interviewed and examined the Veteran, was informed of the pertinent evidence, reviewed the Veteran's claims file, and fully articulated the opinions in the reports, citing to specific medical evidence. There are no contrary competent medical opinions of record, and the medical evidence of record does not otherwise suggest that there is an etiological relationship between any of the claimed disabilities and active service, including herbicide exposure. The Board acknowledges the belief of the Veteran that his claimed disabilities are related to his active service. However, his statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he has not been shown to be competent to render medical opinions on questions of etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). As such, as a layperson, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. Jandreau, 492 F.3d 1372. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's claimed skin cancer or bronchitis and his military service, including no credible evidence of continuous or recurrent symptoms of the claimed disabilities during active service, continuous or recurrent symptoms following service separation, or competent medical evidence establishing a link between the claimed disabilities and active service. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for skin cancer and bronchitis, and outweighs the Veteran's more recent contentions regarding in-service continuous or recurrent symptoms and continuous or recurrent post-service symptoms of the claimed disabilities. In sum, the weight of the evidence demonstrates no medical nexus between the current skin cancer or bronchitis and active service, to include herbicide exposure. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. 2. Entitlement to service connection for erectile dysfunction is remanded. The Veteran has contended that his service-connected PTSD and depression caused him to overeat, which led to obesity, which, in turn, caused or contributed to his sleep apnea and erectile dysfunction. The November 2014 VA examiner cited to medical literature indicating that the strongest risk factor for sleep apnea was an obese body habitus. While the 2014 VA examiner stated that obesity was not related to PTSD but, rather, caused by excess caloric intake, the examiner did not address the Veteran's actual contention, which is not that PTSD somehow physiologically caused obesity, but that PTSD/depression caused him to overeat, which led to obesity, which contributed to his claimed conditions. In addition, the October 2020 VA examiner opined that the Veteran's primary risk factor for sleep apnea was obesity, and that his erectile dysfunction was attributable to obesity among other things. In January 2017, VA's Office of General Counsel issued a precedential opinion that concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis. Similarly, obesity is not a "disability" for the purposes of secondary service connection under 38 C.F.R. § 3.310. However, VAOPGCPREC 1-2017 recognized that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). In order to determine if obesity is an "intermediate step," an adjudicator must resolve the following issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity. If these questions are answered in the affirmative, the claimed disability may be service connected on a secondary basis. See VAOPGCPREC 1-2017. The Board finds that a remand is necessary to obtain a VA examination and opinion to adequately address the question of whether obesity is an "intermediate step" between the Veteran's service-connected psychiatric disabilities and the claimed sleep apnea and/or erectile dysfunction. The matters are REMANDED for the following action: Afford the Veteran the opportunity to attend a VA MST examination with an appropriate specialist or specialists to address the nature and etiology of his sleep apnea and erectile dysfunction. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's service-connected PTSD and depression caused his obesity? In answering this question, the examiner must address whether the psychiatric disabilities caused the Veteran to overeat, which, in turn, led to his obesity. (b.) Next, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's obesity was a substantial factor in causing his sleep apnea and erectile dysfunction? The examiner should address the November 2014 and October 2020 VA examiners' opinions that obesity contributed to sleep apnea and erectile dysfunction in answering this question. (c.) Next, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's sleep apnea and erectile dysfunction would not have occurred but for his obesity? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. [CONTINUED ON NEXT PAGE] All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.