Citation Nr: 21063940 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-23 586 DATE: October 18, 2021 ORDER Entitlement to service connection for emphysema, to include as due to exposure to herbicide agents is denied. Entitlement to service connection for a skin disability, to include as secondary to exposure to herbicide agents is denied. FINDINGS OF FACT 1. The Veteran's pulmonary disorder, to include emphysema, neither began during nor was otherwise caused by his military service, to include as due to any exposure to herbicide agents. 2. The Veteran does not have a skin disability that was incurred in or due to his time in service, nor was a pre-existing condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for emphysema, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a skin disability, to include as secondary to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1969 to March 1976. This matter was previously before the Board in April 2021, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a June 2021 supplemental statement of the case. The Board finds that VA has substantially complied with the April 2021 Board remand. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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 shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(iii) 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: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction); atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 38 C.F.R. § 3.309 (e). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In determining whether service connection is warranted for a disability, 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Entitlement to service connection for emphysema, to include as due to exposure to herbicide agents The Veteran contends that he suffers from emphysema that is etiologically related to service. More specifically, the Veteran has alleged that his condition is secondary to exposure to herbicide agents during his active duty service. At the outset, it is beyond dispute that the Veteran has a diagnosis of emphysema. See April 2021 VA respiratory examination report. Based on the Veteran's service records, exposure to herbicide agents has also been conceded. November 7, 2019 VA memorandum. Nevertheless, the Board finds that entitlement to service connection for emphysema is not warranted under 38 C.F.R. § 3.309 (e), based on his presumed exposure to herbicide agents. The Board notes that the Veteran's pulmonary disorder, to include emphysema, is not among the exclusive list of conditions which are covered by this presumption. See 38 C.F.R. §§ 3.307, 3.309(e). Here, the probative medical evidence of record has found that it is less likely than not that the Veteran's pulmonary disorder, to include emphysema, was the result of his presumed exposure to herbicides during his service in the Republic of Vietnam. As a result, entitlement to service connection for a pulmonary disorder, to include emphysema, based on presumed exposure to herbicide agents is not warranted. Despite service connection not being available on a presumptive basis under 38 C.F.R. § 3.309 (e), the Veteran can still establish service connection on a direct basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007). In accordance with the Board's April 2021 remand directives, an addendum opinion was obtained concerning the etiology of the Veteran's respiratory condition. The examiner opined that it was less likely than not the Veteran's emphysema was causally related to the Veteran's active duty service, to include herbicide agent exposure. The examiner pointed to medical literature showing that emphysema is a subtype of chronic obstructive pulmonary disease. After reviewing the Veteran's service treatment records, the examiner found that, apart from occasional treatment for cold symptoms, there was no indication of any pulmonary issues with an onset during active duty service. The examiner also pointed to medical literature that shows that greatest risk factor for the development of COPD is smoking and that the Veteran has a fifty pack year history of smoking cigarettes. Importantly, the examiner opined that the Veteran's smoking history far exceeds the time exposure that Veteran might have had to herbicide agents. The Board finds the April 2021 examiner's medical opinion to be highly probative because it provided an adequate rationale based on the relevant evidence of record. The examiner indicated that the medical evidence of record did not suggest that his pulmonary disorder had onset in service. Furthermore, the examiner indicated that based on a review of the medical literature and the evidence of record, the Veteran's established history of smoking is the more likely cause of his current pulmonary disorder. To the extent that the Veteran believes that his pulmonary disorder, to include emphysema, is linked to his active duty service the Board notes that he is competent to provide testimony concerning factual matters of which he has fight-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of his pulmonary disorder is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's pulmonary disorder, to include his emphysema, and his military service. In sum, the evidence preponderates against the claim for service connection for a pulmonary disorder, to include emphysema, on a presumptive or direct basis. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for a pulmonary disorder, to include emphysema, including as due to in-service herbicide exposure must be denied. 38 C.F.R. §§ 3.303, 3.307, 3.309. Entitlement to service connection for a skin disability, to include as secondary to exposure to herbicide agents The Veteran maintains that he suffers from a skin disability that is etiologically related to service. At the outset, the Board notes that the Veteran has currently diagnosed skin conditions consisting of seborrhea, nummular eczema, tinea cruris, tinea versicolor and xerosis cutis. See April 2021 VA examination report. Service treatment records show that at an enlistment examination in May 1969, the Veteran's skin was deemed normal. On his accompanying report of medical history, the Veteran reported a history of boils which the examiner characterized as occasional pyoderma. On his separation examination and report of medical history in May 1975 the Veteran's skin was again found to be normal and there were no further reports of boils. As noted earlier this case has been before the Board on several occasions and the Veteran has undergone multiple VA examinations related to this condition. A November 2020 rating decision explicitly found that the Veteran's current skin conditions are not related to the noted pyoderma listed on the Veteran's enlistment report of medical history. Therefore, the remaining issue to be decided by the Board has been whether the Veteran's current skin disability are causally related to his active duty service, to include his conceded in-service exposure to herbicide agents. Following the latest April 2021 Board remand, an addendum opinion was obtained. The examiner opined that the Veterans currently diagnosed skin conditions are less likely than not causally related to the Veteran's active duty service, to include herbicide agent exposure. The examiner noted that the Veteran currently has diagnoses of seborrhea, nummular eczema, tinea cruris, tinea versicolor and xerosis cutis. The examiner opined that it was less likely than not that the Veteran's condition was etiologically related to service, to include exposure to herbicide agents. The examiner explained that the weight of the medical literature does not support the contentions that any of the Veteran's currently diagnosed skin conditions are caused by exposure to herbicide agents. The examiner explained that while it "may be within the realm of possibility" for exposure to herbicide agents to lead to one or more of these conditions, the far greater likelihood for causation lies elsewhere. In particular, tinea cruris and tinea versicolor are well known conditions that are the result of fungal infections of the skin, a cause with far greater likelihood than exposure to herbicide agents. The Board acknowledges all of the statements regarding the Veteran's skin problem. However, while the Veteran is competent to report the symptoms of the Veteran's disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board provides more weight to the competent medical evidence of record and has weighed it as above. The Board finds the examination discussed to be adequate as the examiner saw the Veteran in person, reviewed his file, noted relevant records, offered an opinion supported by adequate rationales. It is important for the Appellant to understand that the medical findings provide highly probative evidence against this claim that the Board cannot, unfortunately, ignore. The Veteran is not a qualified medical professional who can competently opine that his symptoms were a continuation of the one skin problem he had while in service or that his other skin problems were related to his skin problems in service from many years ago. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.