Citation Nr: 21074900 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-55 020 DATE: December 16, 2021 ORDER Entitlement to service connection for skin disorders claimed as soft tissue sarcoma is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT 1. The Veteran does not have soft tissue sarcoma; the Veteran's additional skin disorders are not related to service, to include herbicide exposure. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for skin disorders claimed as soft tissue sarcoma have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1968 to April 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2015 and July 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2021, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (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 or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in a denial-of -service connection. The law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for Veterans who served in the Republic of Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include soft tissue sarcoma, if manifested to a compensable degree at any time after active service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). VA shall consider all information and lay and medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Skin Disorders The Veteran asserts that his skin disorders were incurred in or are causally related to his military service to include herbicide exposure during his service in Vietnam. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to a skin disorder. At his April 1971 separation examination, his skin was normal, and he did not mention having or having had any skin disorder. An October 1992 private post-service treatment record shows that the Veteran was diagnosed with basal cell carcinoma. Whether service connection is claimed on direct, presumptive, or secondary basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although he has a history of basal cell carcinoma, which will be addressed below, there is no medical evidence establishing that the Veteran has soft tissue sarcoma. Therefore, the Board finds that service connection is not warranted for this condition on a presumptive basis. In this case, the medical evidence indicates that the Veteran has been diagnosed with several skin disorders, including actinic keratosis, cicatrix, basal cell carcinoma, ulcerated basal cell carcinoma, intradermal melanocytic nevus, seborrheic keratosis, inflamed verruca vulgaris, poikiloderma, nummular eczema, lentigines, and squamous cell carcinoma. The evidence also indicates that he served in the Republic of Vietnam during the Vietnam era; therefore, it is presumed that he was exposed to herbicide agents, to include Agent Orange. Thus, the Veteran has met the first and second elements of service connection, i.e., current diagnosis and in-service injury, disease, or event. The remaining element and dispositive question in this case is whether any of the Veteran's current skin disorders are related to his military service, including any herbicide exposure therein. In this regard, the Board notes that the medical evidence of record weighs against the claim. A June 2018 private primary care physician opined that for basal cell carcinoma (BCC) and squamous cell carcinoma (SCC), it is more likely than not that these conditions exist at least in part due to sun and/or Agent Orange exposure sustained while serving in our military. The Board finds that the June 2018 private examiner failed to provide any rationale to support his medical opinion. Therefore, as the June 2018 private examiner's opinion was inadequate, the Board requested VA medical opinions. The Board noes that the August 2020 VA opinion was determined to be inadequate and therefore will not be discussed. A September 2021 examiner opined that it is less likely than not that the skin conditions, including actinic keratoses (AK), squamous cell carcinoma (SCC), basal cell carcinoma (BCC) are due to or incurred in the Veteran's military service. Sun exposure while serving in the military is conceded. The examiner discussed different studies and noted that they have suggested a link between military service and the future development of skin cancers. However, cause and effect have not been established. The study cited only noted the possible risk and the need for preventive measures. They themselves note the difficulty assessing the true risk based on sex, occupation, race, pre-service and post-service recreational and occupational environments and/or skin tone. The examiner stated that most skin cancers are due to chronic sun exposure and skin damage and represent a continuum from normal skin to the development of frank cancers. AK's are considered precancerous, potentially leading to SCC. BCC's may arise spontaneously in areas of skin damage and correlate with long-term sun exposure. Melanomas are generally related to chronic, long-term sun exposure though one subtype is more familial and does not necessarily require sun exposure. Therefore, the examiner opined that it is less likely than not that the Veteran's skin cancers are due to or incurred in the specific sun exposures while in service and are more likely than not due to a lifetime of intended and unintended sun exposure. Though not specifically requested, it is less likely than not that all the above conditions are due to or incurred in remote Agent Orange exposure. Any skin condition arising due to exposure would likely manifest at that time or proximate to it and not decades later. The review of the literature, including Up-to-Date, a professional medical resource wherein one may access current professional treatises and studies, fails to return pertinent articles linking remote Agent Orange exposure to the development of any of the above skin conditions. In this case, the Board finds the most probative evidence weighs against the claim. The first objective evidence of the claimed disabilities occurred many years after service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the September 2021 VA medical opinions is adequate. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no adequate medical opinion of record to the contrary. As such, the VA medical opinion is the most probative evidence of record. The Board has considered the evidence of record, lay and medical. With regard to the lay evidence of record, the Veteran is competent to describe what he has personally observed or experienced; however, the ultimate questions of diagnoses and etiology in this case extend beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the Veteran's skin disorders is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Hypertension The Veteran is presumed to have been exposed to herbicide agents during service. He also has a diagnosis of hypertension. While hypertension is not a disease listed under 38 C.F.R. § 3.309 (e) for which a presumption applies for service connection based on exposure to herbicide agents, in November 2018, the National Academy of Sciences issued an update on Veterans and Agent Orange that moved hypertension from the limited or suggestive evidence category to the sufficient evidence of an association category. Initially, the Board notes that none of the VA examiners have considered this study in their opinions for direct service connection. Additionally, in the October 2021 Appellate Brief, the Veteran's representative raised another theory of service connection that the Veteran's hypertension is caused or aggravated by his service-connected diabetes mellitus. Therefore, on remand, an additional VA opinion should be obtained to determine the etiology of the Veteran's hypertension. The matter is accordingly REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from an appropriate examiner to determine the etiology of the Veteran's hypertension. The claims file and a copy of this remand should be made available for review. Following a review of the pertinent record, the examiner must determine the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is related to service, to include herbicide exposure. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veterans hypertension is caused or aggravated by his service-connected diabetes mellitus. A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the November 2018 National Academy of Sciences update on Veterans and Agent Orange that moved hypertension from the limited or suggestive evidence category to the sufficient evidence of an association category. The examiner must also consider and discuss the Veteran's lay statements. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.