Citation Nr: 21073453 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-65 300 DATE: December 8, 2021 ORDER Entitlement to service connection for a skin disorder, to include discoid lupus, to include as secondary to herbicide agent exposure, is denied. Entitlement to service connection for cataracts, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The Veteran's claimed skin disorder, to include discoid lupus, did not occur in service, is not the result of his presumed exposure to herbicides, nor is otherwise related to service. 2. The Veteran's claimed cataracts did not occur in service, is not the result of his presumed exposure to herbicides, nor is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for cataracts have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1963 to December 1965 with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently before the Board in April 2021 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Initially, the Veteran pursued separate awards of service connection for a skin disorder and discoid lupus. During the October 2019 Board hearing, the Veteran clarified that the skin disorder is discoid lupus. Accordingly, the claims have been combined as reflected herein. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In April 2021, the Board also remanded the issues of service connection for lightning strike residuals, gastroesophageal reflux disorder, a psychiatric disability, and a right ankle disorder. In an August 2021 rating decision, the RO granted service connection for a psychiatric disability, gastroesophageal reflux disease, and a right ankle disorder. In an October 2021 rating decision, the RO granted service connection for lightning strike residuals. This constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, these matters are no longer in appellate status. SERVICE CONNECTION Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. As the Veteran in this case served in Vietnam, exposure to herbicide agents has been conceded. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, 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), 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) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a skin disorder, including discoid lupus, to include as secondary to herbicide agent exposure 2. Entitlement to service connection for cataracts, to include as due to herbicide agent exposure The Veteran contends that his skin disorder and cataracts are due to his active-duty service. The Veteran reports he was struck by lightning during service and that his claimed disorders resulted from that incident. In the alternative, the Veteran reports that these conditions were due to herbicide agent exposure in service. At his October 2019 Board hearing, he stated his autoimmune skin disability was related to his sleeping in a tent outdoors at Fort Benning and Vietnam. Specifically, he reported that the humidity and his exposure to bites from ticks and mosquitos resulted in his skin disability. He attested that his skin condition started while he was in Vietnam as he experienced "little liquid skin bubbles" which continued thereafter. As an initial matter, the Board notes that the Veteran's service personnel records reflect that he was stationed in the Republic of Vietnam from August 1965 to November 1965. The Board also notes that the Veteran was awarded the Vietnam Service Medal with One Bronze Service Star, a National Defense Service Medal, a Presidential Unit Citation, and a Republic of Vietnam Gallantry Cross with Palm Unit Citation. As such, the Veteran's service in Vietnam and exposure to herbicide agents is conceded and the presumptions outlined in 38 C.F.R. § 3.309(e) are applicable. 38 C.F.R. § 3.307(a)(6)(iv). Next, the Board finds that the competent evidence of record confirms the Veteran has been diagnosed with discoid lupus and was treated for cataracts during the pendency of the appeal. Concerning presumptive service connection due to herbicide agent exposure, discoid lupus and cataracts are not among the disorders entitled to presumptive service connection. 38 C.F.R. § 3.309(e), Note 3. Notwithstanding the foregoing, even when presumptive service connection is not appropriate, a Veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee, supra. The Veteran's service treatment records do not show any complaints related to skin disorders, or eye conditions. However, the Veteran's separation examination and medical history are not of record despite efforts to obtain them. Post service treatment records reflect treatment for discoid lupus and cataracts. The Veteran received a VA examination in March 2020 for his skin disorder. The examiner provided a negative opinion for discoid lupus, noting there was no link between herbicide agent exposure and discoid lupus. The examiner additionally reasoned that discoid lupus is not caused by a lightning strike. She explained that lupus does not have one clear cause, but possible ones include hormones, genetic factors, and environmental triggers. An addendum opinion from August 2020 noted that none of the Veteran's claimed conditions were residuals of a lightning strike. In February 2021, a VA dermatologist noted the Veteran did not have systemic symptoms of lupus. Pursuant to the April 2021 Board remand, the Veteran was afforded another examination in August 2021. This examiner also provided a negative opinion. She noted that herbicide agent exposure and a lightning strike cannot cause discoid lupus. She addressed the Veteran's contentions regarding environmental factors such as bites from ticks and mosquitos and determined the Veteran's reported skin condition in service seemed more likely to be an allergic reaction or atopic dermatitis and less likely typical of lupus. In reaching this conclusion, she specifically noted the difference in symptoms and where they were located on his body. The Veteran also received a VA examination for his cataracts in March 2020. The examiner opined the Veteran's cataracts were less likely than not related to the in-service lightning strikes. The examiner explained that cataracts caused by lightning are rosette shaped, whereas the Veteran exhibits age-related cataracts that were documented decades after service. An addendum opinion from August 2020 noted that none of the Veteran's claimed conditions were residuals of a lightning strike. Pursuant to the April 2021 Board remand, the Veteran received an additional examination in September 2021. This examiner also provided a negative opinion, concluding the Veteran's cataracts were not due to herbicide agent exposure or a lightning strike in service, but rather were age-related. In reaching this conclusion, the examiner explained that the Veteran did not begin exhibiting mild cataracts until June 2005, 40 years after separation from service. Here, there is no competent medical opinion of record linking the Veteran's discoid lupus or cataracts to active-duty service, to include herbicide agent exposure, lightning strikes, or environmental factors such as bug bites. As such, there are no grounds for service connection on a direct or presumptive basis. The only evidence of record in support of such a nexus is the lay opinion of the Veteran who contends that his skin disorder and cataracts are due to service. To the extent the statements from the Veteran are being offered to establish a medical nexus, such evidence fails because this determination is a complex medical matter beyond the realm of common knowledge of a layperson. In this regard, as above, while the Veteran could competently report observable symptoms, the claimed disorders can have many causes. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether a disease is caused by exposure to chemicals is a complex question well known to be the type of question subject to extensive research by medical professionals. The Veteran has not been shown to possess specialized training sufficient to render such an opinion. Accordingly, his assertions as to a relationship between his claimed conditions and service are of little probative value. Moreover, whether the skin symptoms the Veteran reportedly experienced during or after service are in any way related to his currently diagnosed skin disorders is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Accordingly, the Veteran's opinion as to the onset and etiology of skin disorder is not competent evidence and, thus, is afforded no probative weight. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). After careful review of the entire record, the Board has determined that a preponderance of the evidence weighs against the Veteran's claims. Accordingly, the claims for service connection for a skin disorder, to include discoid lupus, and service connection for cataracts is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, Associate 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.