Citation Nr: 21065061 Decision Date: 10/23/21 Archive Date: 10/23/21 DOCKET NO. 20-05 791 DATE: October 23, 2021 ORDER Entitlement to service connection for benign paroxysmal positional vertigo (BPPV), to include as secondary to a service-connected disability, is denied. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is denied. Entitlement to service connection for skin cancer, to include as due to herbicide agent exposure in the Republic of Vietnam, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's BPPV is secondary to a service-connected disability, or is otherwise related to an in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran's OSA is secondary to a service-connected disability, or is otherwise related to an in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the Veteran's skin cancer began during active service, or is otherwise related to an in-service event, injury, or disease, to include his exposure to herbicide agents in the Republic of Vietnam. CONCLUSIONS OF LAW 1. The criteria for service connection for BPPV have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for OSA have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for skin cancer have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 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 from September 1965 to June 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2018 and August 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board, along with the additional service connection claim for gastroesophageal reflux disease (GERD), in August 2020, where they were remanded for additional development. In July 2021, the Veteran's GERD claim was granted and is no longer on appeal. The remaining claims now return for further adjudication. The Board notes that the Veteran's representative submitted argument in September 2021 alleging that the RO committed error in not providing the Veteran with an adequate Supplemental Statement of the Case (SSOC) following the development ordered in the Board's previous remand. Specifically, the Veteran's representative stated that the SSOC failed to reference VA examinations afforded to the Veteran pursuant to the Board's previous remand, and therefore, neither the Veteran "nor his Counsel can properly evaluate the evidence the VA uses to continue the denial of Veteran's claims or ensure the VA substantially complied with the Board's remand instructions." As the Veteran's representative noted, VA must provide a statement of the reasons and bases that it relied on to make its findings and conclusions for all material issues of fact and law presented in the record, identifying what evidence it found critical and detailing what VA found persuasive and unpersuasive with a clearly articulated justification for the determination. This statement must enable the claimant to understand why the VA made its determination. Indeed, the most recent SSOC issued in July 2021 pertaining to these issues does not note any VA examination as evidence considered, nor does it discuss any VA examination in the Reasons and Bases section of the document. However, the record reflects that, immediately subsequent to the VA examinations afforded pursuant to the Board's previous remand in February and March 2021, an SSOC was issued in April 2021 that does indeed list and discuss this evidence in continuing the denials of the Veteran's claims. There is no indication that neither the Veteran nor his representative did not receive the April 2021 SSOC. While it is true that addendum medical opinions were obtained and added to the record after the April 2021 SSOC, these opinions pertain only to the Veteran's service connection claim for GERD which, as noted above, was granted in July 2021. As the July 2021 SSOC was then only limited to the three remaining claims on appeal, there was no need to discuss the evidence pertaining to the GERD claim. The only remaining medical evidence added to the file after the April 2021 SSOC that may be relevant to the claims herein were additional VA treatment records, which were indeed noted and discussed in the July 2021 SSOC. As such, the Board has found no error in VA's duties in regard to the July 2021 SSOC. Neither the Veteran nor his representative has identified any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Service connection for BPPV. 2. Service connection for OSA. The Veteran asserts that his BPPV and OSA, diagnosed upon VA examination in May 2016 and January 2018, respectively, are related to service or service-connected disabilities. The Veteran's service treatment records (STRs) show no complaints, diagnosis, or treatment for symptoms indicative of BPPV or OSA. As the Veteran reported other ailments during service, and as dizziness and fatigue are problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with such during service the Board would expect that he would have reported this problem to medical professionals. During his June 1969 separation examination, physical evaluation of all bodily systems was normal. The Veteran's BPPV is not shown by medical evidence until approximately the time of his service connection claim, many years after the Veteran's separation from service. Regarding onset of symptoms related to his BPPV, post-service the Veteran has reported that "over the years" he has had tolerable vertigo for a few minutes, usually when going from a lying to standing positions in the morning but have been increasing. See May 2016 VA Ear Conditions Examination. Upon VA examination again in November 2017, however, the Veteran asserted that his vertigo began in 1969 after returning from Vietnam. Regarding his OSA, the record reflects that the Veteran was diagnosed via a sleep study in 2007. He has not indicated that his sleep apnea began during or close-in-time to his military service. As BPPV and OSA are not shown to be present during service or in the year following separation from service, and since neither are considered a "chronic disease" for VA purposes, in-service incurrence of these disabilities cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's STRs which are negative for such an indication. The Board finds these earlier records to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. It is the Veteran's assertion, however, that his BPPV and OSA are secondary to service-connected disabilities and/or their treatments. As to his BPPV, the Veteran was first afforded a VA examination in May 2016. The examiner opined, after interview and physical examination, that it was less likely than not that his BPPV is proximately due to or the result of hearing loss and tinnitus. The examiner explained that BPPV occurs when a small piece of calcium crystals breaks free and floats inside the semicircular canals on the inner ear, causing a spinning sensation. There are multiple factors that increase the risk of BPPV, the examiner continued, such as natural aging, genetic factors, sudden head movement, stress, dehydration, vascular damage, lack of sleep, ear infection, a history of head injury, and changes in barometric pressure. Hearing loss and tinnitus, however, are not factors. Further, in an addendum opinion provided in November 2017, an additional examiner also provided a negative opinion, stating that the Veteran described postural changes that are producing balance disruption. There is no evidence, he continued, to indicate that exposure to noise can produce, or is correlated to, the production of hypotension (a drop in low blood pressure which can cause dizziness or fainting). As to his PTSD, an additional VA examination was provided in January 2018. After interview and examination, the examiner opined that it was also less likely than not that the Veteran's BPPV is proximately due to his PTSD, explaining that current medical literature does not associate vertigo with PTSD. As noted in the Board's previous remand, the above opinions did not address whether the Veteran's service-connected disabilities aggravated his BPPV. As such, a VA examiner, Dr. M.T. provided an opinion in February 2021, as well as a clarifying addendum the following March 2021. Dr. M.T. stated that BPPV is less likely than not caused by the Veteran's service-connected disabilities or their prescribed medications, based on "medical records containing clinical note in 12/2019 reporting 'PMHx Impaired hearing, Tinnitus, Hyperlipidemia, Adenocarcinoma of prostate, Bradycardia; reports ASA, losartan, Mirtazapine, Oxybutinin, Rosuvastatin, Tamsulosin' and current medical literature reporting none of the medical conditions or their treatment cause BPPV." As the previous examiner noted, Dr. M.T. similarly stated that BPPV is a condition caused by problems in the inner ear whereby tiny calcium stones inside the inner ear canals (which help to maintain balance) would move around when changing position causing dizzy spells, not the Veteran's service-connected disabilities or their treatment. As to aggravation, Dr. MT. opined that it is also less likely than not that BPPV is aggravated by his service disabilities and their prescribed medications because "those service-connected disabilities/[medications] do not worsen/alter the calcium stones in the inner ear." As to the Veteran's OSA claim, a VA medical opinion was obtained in January 2018, as well as addendum opinions in February and March 2021, similar to the BPPV claim and also provided by Dr. M.T. In January 2018, the examiner opined that it was less likely than not that the Veteran's OSA is proximately due to or the result of his PTSD "based current medical literatures which reports of increase risk of OSA in military personnel but not the cause of OSA." OSA, the examiner explained, is characterized by recurrent collapse of the velopharyngeal and/or oropharyngeal airway during sleep, resulting in substantially reduced or complete cessation of airflow despite ongoing breathing efforts, which leads to intermittent disturbances in gas exchange and fragmented sleep. While there is recent medical literature reporting "anecdotical evidence" of PTSD/anxiety or mental disorder linked to OSA, there is currently no evidence in current medical literature to directly link the conditions. Rather, the examiner continued, the risks for sleep apnea are advancing age, male gender, obesity, and craniofacial or upper airway soft tissue abnormalities. Additional risk factors identified in some studies include smoking, nasal congestion, menopause, and family history, and rates of OSA are also increased in association with certain medical conditions, such as pregnancy, end-stage renal disease, congestive heart failure, chronic lung disease, and stroke. While there may be some increased incidence, mental disorders are not considered a risk factor. A more plausible explanation for the increased incidence, Dr. M.T. continued, is that discharged veterans who have a higher incidence of sleep apnea are more likely than not predisposed genetically as well as "the closed quarter work and living environment of the military service were more veterans found to have sleep apnea compared to the general public." In addition, the examiner finally noted, most veterans after discharge or retirement gain significant weight due to lack of enforced exercise regime to maintain physical fitness. While the Board acknowledges that this Veteran, based on his medical records, is not necessarily obese, the examiner's opinion in this regard is to offer explanation as to why there may be increased incidents of OSA in Veteran's compared to the rest of the general population. Similar to the Veteran's BPPV claim, as the examiner did not provide an opinion as to the aggravation aspect of secondary service connection, addendums were provided in February and March 2021. In addition to providing an opinion that the Veteran's OSA is less likely than not directly related to service since he reported no such issues during service (as the Board has also noted), the examiner also opined that it was less likely than not that the Veteran's OSA was aggravated by his service-connected disabilities or their treatment. After review of the record, including several listed medical treatises, including those provided by the Veteran, the examiner explained that OSA is "a recurrent, functional collapse during sleep of the velopharyngeal and/or oropharyngeal airway, causing substantially reduced or complete cessation of airflow despite ongoing breathing efforts that leads to intermittent disturbances in gas exchange and fragmented sleep. Current medical literature, the examiner continued, does not report any cause/effect relationship with mental disorders, tinnitus, or hearing loss, as well as hyperlipidemia and prostate cancer disabilities for which the Veteran is also service-connected. The Board finds the above opinions, as a whole, to be highly probative as they were made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is also no medical opinion or competent and credible evidence in significant conflict with the multiple VA medical opinions pertaining to his BPPV and OSA claims. Based on the foregoing, the Board finds the evidence against the Veteran's claims for service connection for BPPV and OSA, and they must therefore be denied. The Board has considered the Veteran's statements, to include his assertions that his BPPV and OSA are related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., dizziness, sleep difficulties, fatigue; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for skin cancer. The Veteran asserts that his skin cancer, noted upon VA examination in March 2021 as status post basal cell carcinoma, is related to exposure to herbicide agents in the republic of Vietnam. There are certain diseases that are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). 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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). Here, the Veteran's service personnel records verify his service in the Republic Vietnam during the requisite time period. Accordingly, service connection is warranted on a presumptive basis if it is shown that the Veteran has one of the diseases enumerated in 38 C.F.R. § 3.309(e). Basal cell carcinoma, however, is not one of the enumerated disabilities listed under 38 C.F.R. § 3.309(e). Thus, although the Veteran served in the Republic of Vietnam during the requisite time period, the provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) are not for application. Regardless of whether a claimed disability is recognized under 38 C.F.R. § 3.309(e), a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). The Veteran's STRs, however, are negative for any complaints, diagnosis, or treatment related to a skin disability. As the Veteran reported other ailments during service, and as skin problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with his skin during service the Board would expect that he would have reported these problems to medical professionals. During his July 1969 separation examination, evaluation of the head, face, neck, and scalp was normal. The Veteran's post-service medical records show that he was not diagnosed as having skin cancer until a 1995 diagnosis of basal cell carcinoma on the right side of his nose and again on the left cheek in 2018. See November 2020 VA Skin Diseases Disability Benefits Questionnaire. As a chronic skin disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of a skin cancer disability cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's STRs which are negative of treatment or complaints indicative of skin cancer, including his separation examination. The Board finds these earlier records to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. Pursuant to the Board's previous remand, a VA skin examination was afforded in November 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that it was less likely than not that the Veteran's skin cancer is related to service to include herbicide agent exposure "based on current medical literature and VA list of medical conditions as presumptive diseases associated to agent orange reporting." The examiner continued that basal cell carcinoma is not caused by agent orange, but rather due to sun exposure. The Board finds the above opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The Veteran does not assert, nor does the record suggest, that he was overexposed to the sun during his military service any more so than he was in his civilian life. There is also no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. Based on the foregoing, the Board finds the evidence against the Veteran's claim, and it must be denied. The Board has considered the Veteran's statements, to include his assertions that his history of skin cancer is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., a skin condition; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson, 581 F.3d 1313. The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.