Citation Nr: 21071638 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-54 160 DATE: December 1, 2021 ORDER Service connection for a skin disorder is denied. Service connection for a cranial meningioma is denied. REMANDED Entitlement to service connection for hypertension. FINDINGS OF FACT 1. The Veteran had active service from February 1965 to February 1967, including service in the Republic of Vietnam. 2. A skin disorder, diagnosed as lichen planus, was not shown in service and is not otherwise etiologically related to service, to include as due to herbicide exposure. 3. A cranial meningioma was not shown in service or within one year of service discharge and is not otherwise etiologically related to service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. A skin disorder was not incurred in service nor is it due to herbicide exposure. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 2. A cranial tumor meningioma was not incurred in service nor is it due to herbicide exposure. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2019, the Veteran testified at a video hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2020, the Board denied the appeals. He appealed to the Veterans Claims Court. In April 2021, the Court Clerk granted a Joint Motion for Remand. The appeal has returned to the Board for action consistent with the Joint Motion. Turning to the relevant law and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Veteran's service records confirm that he served in the Republic of Vietnam; thus, he is presumed to have been exposed to herbicides; however, none of the diagnosed disabilities in this case are presumed to be related to herbicide exposure. Therefore, only direct service connection will be considered. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Skin Disorder The Veteran testified in August 2019 that he has a skin disorder, indicated to be lichen simplex at the hearing, that has been present since service. Initially, VA treatment notes reflect a history of lichen planus with the diagnosis and treatment occurring in January 2001. No residuals or recurrence of the disorder was subsequently documented. An April 2015 letter from a private dermatologist indicated that the Veteran received a diagnosis of dermal hypersensitivity reaction. Therefore, a current diagnosis has been shown and the first element of service connection is met. As to an in-service incurrence, the service treatment records (STRs) are silent for complaint, treatment, or diagnosis of a skin disorder. The Veteran has asserted that his skin disorder began in service, and as he is competent to report symptoms he perceives, such as lesions on his skin. As such, for purposes of this decision, the second element of service connection an in-service incurrence is also met. Nevertheless, the third element of service connection a medical nexus is not met. Two statements from private physicians have been received that address the etiology of the skin disorder. In April 2015, Dr. JE stated that he could neither confirm nor deny that the Veteran's skin disorder was caused by exposure to Agent Orange. Additionally, a primary care physician, Dr. RE stated in October 2014 that the skin disorder was chronic and, by history, was contracted during service. The statement of Dr. JE does not express either a positive or negative opinion, and therefore, carries lesser probative weight. Further, the statement of Dr. RGE reflects the Veteran's reported medical history but did not provide an objective rationale. Rather, Dr. RE referred any question as to the further detail regarding the skin disorder to the Veteran's dermatologist. Accordingly, Dr. RGE's statement is assigned lesser probative weight. The Veteran was not afforded a VA examination to assess the etiology of his skin disorder; however, the low threshold for scheduling an examination is not met in this case because there is only the unsupported lay contention of a medical nexus to service. General conclusory statements do not rise to an indication of a link. See Waters, 601 F.3d at 1278-79. The Veteran has not presented medical evidence of a link. Therefore, remand for a VA examination is not required. There is no competent and probative opinion that associates any of the Veteran's diagnosed skin disorders with service, either directly or as a result of herbicide exposure. As such, the medical evidence weighs against finding a nexus and does not support service connection. Cranial Meningioma As to a current disorder, the record reflects that the Veteran was diagnosed with a left petrous meningioma in October 2013 and underwent surgery. While there has been no documented recurrence of the tumor, and it is unclear whether he has experienced any residuals of the tumor or its removal, the evidence supports a diagnosis during the appeal period. As to an in-service incurrence, the STRs are silent for any complaint, treatment, or diagnosis related to symptoms or diagnosis of a tumor. Further, neither post-service treatment notes nor lay statements, including the August 2019 hearing testimony, assert that the tumor first developed in service. Rather, the Veteran has contended only that his tumor developed as a result of exposure to herbicide exposure. While soft-tissue sarcomas are generally presumed to be related to herbicide exposure, meningiomas are not among such disorders. Therefore, the tumor is not presumed to be related to herbicide exposure. Moreover, there is no competent medical opinion relating the disorder to herbicide exposure or otherwise to service. The Veteran related that his physician, Dr. RE, indicated that being exposed to herbicide agents could have caused the tumor over a period of time. However, while there is a statement from Dr. RE concerning the etiology of a skin disorder, no such statement or treatment note directly from Dr. RE asserting a connection between the tumor and service is of record. Moreover, the phrase "could have" relegates the statement to little more than speculation, which renders it an insufficient basis for granting service connection. No competent and probative opinion relating the Veteran's tumor directly to service, to include herbicide exposure, is of record. Therefore, the medical evidence does not support service connection on a direct medical nexus or direct causation basis. As with the skin disorder, the Veteran was not afforded a VA examination to assess the etiology of his tumor; however, the low threshold for scheduling an examination is not met in this case because there is only the unsupported lay contention of a medical nexus. General conclusory statements do not rise to an indication of a link. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Probative evidence of medical nexus has not been received. Therefore, remand for a VA examination is not required. Next, malignant tumors are chronic diseases under 38 C.F.R. § 3.309 and presumptive service connection will be considered. However, no chronic disease or injury was shown in service. As noted, the STRs are absent of any complaints, treatment, or diagnosis related to a cranial tumor or any symptoms reasonably associated with one. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the earliest date associated with the tumor diagnosis was 2013, over 45 years after service. The Veteran has also not disputed that his tumor symptoms did not develop until 40 or 50 years after service. Thus, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, this evidence establishes that the disorder did not manifest to a degree of 10 percent or more within one year from the date of separation of service in February 1967. As indicated, neither medical nor lay evidence suggests that the Veteran developed symptoms of a tumor within a year of discharge. Therefore, the evidence does not support presumptive service connection on a "manifested to a compensable degree within one-year from separation" basis. Accordingly, the medical evidence does not support presumptive service connection on any basis. The Board has considered the Veteran's lay statements that his meningioma and skin disorder were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. With regard to the Veteran's skin disorder specifically, he asserted that he has had skin symptoms since service, and he has competency to describe those symptoms, Nevertheless, as discussed above, his symptoms have been assigned at least two distinct diagnoses over time. Moreover, there are significant periods during which skin concerns, even if inactive, were not clinically referenced, thereby calling into question the chronicity of any given skin disorder since service. Hence, the contention that symptoms of a current skin disorder have been present since service is not alone sufficient to establish a nexus to service for that disorder. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In accordance with the Joint Motion, the appeal for service connection for hypertension is remanded so that an opinion may be obtained as to whether the Veteran's hypertension was directly related to service, to include exposure to herbicides. The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain outstanding, relevant treatment notes. 2. Direct the claims file to a clinician to address the following: Is it at least as likely as not (a 50% probability or more) that the Veteran's hypertension was a result of his presumed exposure to herbicides in service or was otherwise caused by service? The rationale for any opinion expressed must be provided. The clinician is advised that the questions of causation and aggravation are distinct, and the rationales provided should also be distinct. If the clinician is unable to provide the opinions requested, he or she should explain why. An examination need not be scheduled unless the clinician cannot answer the questions presented without one. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. M. Schaefer, 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.