Citation Nr: 21067065 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-29 044 DATE: November 3, 2021 ORDER New and material evidence has been received and the claim entitlement to service connection for asthma is reopened. The claim is granted to this extent only. New and material evidence has been received and the claim for entitlement to service connection for hypertension is reopened. The claim is granted to this extent only. REMANDED Entitlement to service connection for hypogonadism due to herbicide exposure is remanded. Entitlement to service connection for asthma due to herbicide exposure is remanded. Entitlement to service connection for hypertension due to herbicide exposure is remanded. Entitlement to service connection for skin conditions, to include skin cancer due to herbicide exposure, is remanded. FINDINGS OF FACT 1. By a January 2011 rating decision, the Veteran's claim of entitlement to service connection for asthma was denied. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the January 2011 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection. 3. By a January 2011 rating decision, the Veteran's claim of entitlement to service connection for hypertension was denied. 4. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the January 2011 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection. CONCLUSIONS OF LAW 1. The January 2011 rating decision denying service connection for asthma is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for asthma, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The January 2011 rating decision denying service connection for hypertension is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1967 to October 1971. In June 2021, the Veteran testified at a Board hearing. The transcript is of record. Reopening The claims of entitlement to service connection for asthma and hypertension are reopened. A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In the January 2011 rating decision, the Veteran's claims for service connection for asthma and hypertension were denied based on the findings of no diagnosis or in-service injury, event, or illness. At the time of that decision the pertinent evidence of record included service treatment records and the Veteran's application. The evidence received since the January 2011 rating decision includes post service medical records and the Veteran's competent testimony from the June 2021 Board hearing describing his current diagnosis and in-service exposure to herbicides. This evidence is new and material as it provides evidence of current diagnoses and an in-service event, which are unsubstantiated facts that are necessary to substantiate the claim. Therefore, the claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for hypogonadism, skin conditions, asthma, and hypertension due to herbicide exposure The VA has a duty to assist, which includes providing a medical opinion when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i). The Veteran alleges that his hypogonadism, skin conditions, asthma and hypertension are due to herbicide exposure; however, these are not listed diseases under 38 C.F.R. § 3.309(e). Therefore, presumptive service connection due to herbicide agent (to include agent orange) exposure is not warranted. However, service connection may be established on a direct service connection basis due to in-service exposure to agent orange. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The record contains sufficient evidence to trigger the VA's duty to assist by providing a medical opinion. In determining whether VA's duty to assist requires a VA medical examination or medical opinion, four factors are for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the medical evidence establishes current diagnoses of hypogonadism, skin cancer, asthma, and hypertension and herbicide exposure is conceded a remand is necessary to obtain VA medical opinions. The Board notes that the record contains an opinion from Dr. K.M. for skin cancer. Dr. K.M. stated that the Veteran was exposed to agent orange and in his opinion, dioxin is one of the causes of basal cell and squamous cell carcinoma. This opinion inadequate as Dr. K.M. did not use the correct legal standard ("at least as likely as not"). As such, a remand for a medical opinion on the nature and etiology of the Veteran's skin conditions is warranted. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's testicular hypogonadism is related to his active service, or is caused by or aggravated by military service, to include due to herbicide exposure. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner should consider and address the following: 1) the Veteran's assertion that while serving in Vietnam he was sprayed with agent orange while standing post and unable to wash off residue for eight to ten hours; and 2) the article "Exposure to Dioxins Influences Male Reproductive System, Study of Vietnam Veterans Concludes" See Correspondence June 2021. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record and the opinion and rationale should reflect such consideration. The fact that hypogonadism is not a disability presumed to be related to herbicide agent exposure is not sufficient to serve as a rationale in this case. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the 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(s). 4. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) List all skin conditions present during the time period of the claim. (a.) For each skin condition present, determine whether it is at least as likely as not (a 50 percent or greater probability) that the skin condition is related to active service, or is caused by or aggravated by military service, to include due to herbicide exposure. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner should consider and address the following: 1) the Veteran's assertion that while serving in Vietnam he was sprayed with agent orange while standing post and unable to wash off residue for eight to ten hours; and 2) the opinion from Dr. K.M. stating that dioxin is one of the causes of basal cell carcinoma and actinic keratosis along with sun burns. See Medical Treatment Record Non-Government Facility July 2015. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record and the opinion and rationale should reflect such consideration. The fact that a condition is not a disability presumed to be related to herbicide agent exposure is not sufficient to serve as a rationale in this case. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the 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(s). 5. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that asthma is related to his active service, or is caused by or aggravated by military service, to include due to herbicide exposure. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner should consider and address the Veteran's assertion that while serving in Vietnam he was sprayed with agent orange while standing post and unable to wash off residue for eight to ten hours. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record and the opinion and rationale should reflect such consideration. The fact that asthma is not a disability presumed to be related to herbicide agent exposure is not sufficient to serve as a rationale in this case. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the 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(s). 6. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that hypertension is related to his active service, or is caused by or aggravated by military service, to include due to herbicide exposure. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner should consider and address the following: 1) the Veteran's assertion that while serving in Vietnam he was sprayed with agent orange while standing post and unable to wash off residue for eight to ten hours; and 2) the National Academy of Sciences Veterans and Agent Orange: Update 11 (2018), which upgraded hypertension from the category of "limited or suggestive" evidence of an association with herbicide agent exposure to the category of "sufficient" evidence. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record and the opinion and rationale should reflect such consideration. The fact that hypertension is not a disability presumed to be related to herbicide agent exposure is not sufficient to serve as a rationale in this case. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the 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(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.