Citation Nr: A21020014 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200924-110921 DATE: December 15, 2021 ORDER Service connection for hypertension is granted. Service connection for tinnitus is denied. REMANDED Service connection for squamous cell cancer of right hand, face, and ears is remanded. Service connection for residuals right arm, due to basal cell carcinoma is remanded. FINDINGS OF FACT 1. The weight of the most probative evidence of record is at least in equipoise as t whether the Veteran's hypertension is related to in-service herbicide agent exposure. 2. The weight of the most probative evidence of record is against finding that the Veteran's tinnitus began during active service, or is otherwise related to an in-service injury, or disease, to include his service-connected hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus, to include as proximately due to service-connected hearing loss, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from March 1965 to August 1989. This case is before the Board of Veterans' Appeals (Board) from July 2020 (residuals right arm basal cell carcinoma; squamous cell cancer of right hand, face, and ears; and tinnitus) and September 2020 (hypertension) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA was implemented effective February 19, 2019 and automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). The rating decisions were issued after the February 19, 2019 implementation of AMA, and a September 24, 2020 VA Form 10182 was received. Accordingly, this decision is drafted in accordance with AMA. The Veteran elected direct review by a Veterans Law Judge (09/24/2020 VA Form 10182 Notice of Disagreement). Under the AMA, when a claimant seeks appellate review through the Board's Direct Review docket, the Board may consider only the evidence of record at the time of the AOJ decision on appeal. See 38 C.F.R. § 20.301. In general, the Board is bound by favorable findings in the Rating Decision on appeal. See 38 C.F.R. § 20.801 (a). Favorable findings for each claimed disability are identified in pertinent sections below. Pursuant to AMA, the remand AMA appeals to the AOJ is limited to the correction of pre-decisional duty to assist errors. 38 C.F.R. § 20.802 (a). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In addition, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service connected. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3). 1. Hypertension. With regard to hypertension, favorable findings include that the Veteran has been diagnosed with hypertension, The RO has made favorable findings that the claimed disability is a chronic disease, which may be presumptively linked to the Veteran's military service and he has sufficient service to meet the minimum requirements for presumptive service connection. The RO has also noted the Veteran is service connected for diabetes mellitus, type II, and coronary artery disease, the primary diseases identified with regard to the Veteran's claim for hypertension on a secondary basis (09/21/2020 Rating Decision Narrative, pg. 3). The Board is bound by these favorable findings. The Veteran's service record confirms Vietnam service in 1968, that is between January 6, 1962 and May 7, 1975. Pursuant to 38 C.F.R. § 3.307, the Veteran is presumed to have been exposed to herbicide agents (05/17/2017 Military Personnel Record, pg. 1; 05/05/2017 DPRIS - DD 214 Certified Original - Certificate of Release or Discharge From Active Duty, pg. 1). Hypertension is not included in the list of presumptive diseases associated with herbicide agent exposure; therefore, presumptive service connection pursuant to 38 C.F.R. § 3.307(e) is not for application in this case. With regard to presumptive service connection of a chronic disease, hypertension is an early symptom long preceding the development of early cardiovascular renal diseases in their more obvious forms. Thus, a disabling hypertension within a one year period after service will be given the same benefit of service connection as any enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran's service treatment records do not reveal in-service treatment for or diagnosis with hypertension, or complaints suggestive of symptoms of hypertension. While not dispositive, this weigh against the Veteran's claim. Additionally, the record suggests the Veteran was initially diagnosed with hypertension in 1994, years after his discharge from service (11/10/2019 C&P Exam, pg. 2). As the medical evidence of record suggests the Veteran was not diagnosed with hypertension until years after the Veteran's 1989 discharge from service, the Board does not find the Veteran's hypertension manifested to a compensable degree within one year of his active service. As such, presumptive service connection of hypertension as a chronic disease is not warranted in this case. The Board has also considered whether the Veteran's hypertension is secondary to, or proximately caused by his service-connected diabetes mellitus, type II, and coronary artery disease. On this question, a number of VA examinations and accompanying opinions are of record. A November 2019 opinion provided the Veteran's hypertension is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected conditions. The examiner explained the two conditions are not medically related. The claimed disorder, hypertension, is a separate entity entirely from the service-connected conditions and unrelated to it. The medical literature does not support a medical relationship. The examiner explained the Veteran's hypertension was diagnosed prior to his diabetes. The Veteran's impaired fasting glucose was diagnosed in 2015 and officially diagnosed with Type II diabetes in 2016 (11/07/2019 C&P Exam, pg. 2). The examiner also explained medical literature does not support a medical relationship. Likewise, with regard to coronary artery disease, the examiner noted the Veteran's hypertension diagnosis was prior to his diagnosis with coronary artery disease. The examiner referenced a medical health test article discussing a correlation between hypertension and coronary artery disease, concluding that there are no clinical evidences that coronary artery disease causes hypertension. In March 2020, after a review of the Veteran's file, the VA examiner opined it is less likely as not that the Veteran's hypertension was permanently aggravated beyond normal progression by the coronary artery disease or diabetes. (03/09/2020 C&P Exam). Although the medical evidence did not suggest a proximate relationship between the Veteran's hypertension and either his service-connected diabetes or his coronary artery disease, the November 2019 examiner explained there is an association with the Veterans diagnosed hypertension with his herbicide agent exposure from 1968 to 1969 in Vietnam. The examiner found this exposure to be more likely the cause of his hypertension than his coronary artery disease (11/07/2019 C&P Exam, pg. 2). The examiner cited to medical research that supports this conclusion. According to an article published by VA researchers in the Journal of Occupational and Environmental Medicine, found a higher rate of hypertension among members of the Army Chemical Corps who handled Agent Orange during the war compared with those who did not. Corps members who served in Vietnam but did not spray the chemicals also had a higher rate of hypertension than their peers who served outside Vietnam. (11/07/2019 C&P Exam, pg. 2). In weighing the evidence of record, the Board finds the November 2019 VA examination to be the most probative of record with regard to direct service connection for hypertension. The examiner's positive nexus opinion was based on an in-person examination and consideration of the Veteran's service and medical history. As such, the opinion is highly probative. While the Board recognizes that the examiner's finding was that hypertension was more likely caused by herbicide exposure than by his cardio disability, and not strictly speaking that the hypertension was, overall, more likely than not due to such exposure. However, the Board resolves doubt on this point, finding that if the in-service exposures were deemed significant enough to be discussed, it was the examiner's intent to relate the hypertension to such exposure under the at least as likely as not standard. Apart from the medical opinion itself, the cited medical literature is highly probative, weighing in favor of a nexus between the Veteran's hypertension and his presumed herbicide agent exposure during his service in Vietnam. After considering the most probative evidence of record, the Board concludes that, the evidence is at least in equipoise that the Veteran's currently diagnosed hypertension is related to an in-service injury, event, or disease, specifically herbicide agent exposure. Accordingly, entitlement to service connection for hypertension is warranted and the Veteran's claim is granted. 2. Tinnitus. The Veteran has claimed entitlement to service connection for tinnitus without raising specific contentions. With regard to the Veteran's tinnitus, favorable findings include that the Veteran has been diagnosed with tinnitus. A qualifying event, injury, or disease had its onset during your service, specifically, his DD Form 214 shows one of his MOS was Boatswains Mate, which had a high probability to military noise exposure. (07/22/2020 Rating Decision Narrative). Given the above, the first two elements for service connection on a direct basis are met. The question for the Board is whether the Veteran's currently diagnosed tinnitus began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment record does not reveal complaints of or treatment for tinnitus. While not dispositive, weighs against the Veteran's claim for tinnitus. The Veteran has been afforded VA examinations for hearing loss and tinnitus. During his June 2017 VA examination for hearing loss and tinnitus, he did not report recurrent tinnitus (06/30/2017 C&P Exam, pg. 5). In October 2019, the Veteran reported tinnitus, and described constant bilateral buzzing that began with gradual onset several years ago (10/28/2019 C&P Exam). The October 2019 examiner opined it was less likely than not associated with hearing loss due to the significant difference in the time of the onset of hearing loss and tinnitus which would indicate separate etiologies. The October 2019 examiner also noted the June 2017 VA examination the Veteran denied the presence of tinnitus. The examiner also noted that current literature does not support late onset noise-induced tinnitus (10/28/2019 C&P Exam, pg. 8). The Board concludes that, while the Veteran has a current diagnosis of tinnitus, and in-service hazardous noise exposure has been conceded, the preponderance of the evidence of record weighs against finding that the Veteran's tinnitus began during service or is otherwise related to an in-service injury, event, or disease. The Veteran denied tinnitus during his June 2017 examination, and during his October 2019 examination described onset of his tinnitus as having been several years ago, but without specifying beyond this statement. There is no evidence of in-service onset or continuity of tinnitus symptoms since service. Additionally, weighing against the Veteran's claim was the October 2019 examiner's explanation that medical literature does not support late onset noise-induced tinnitus. As such, the Board finds the weight of the evidence of record weights against the Veteran's claim for tinnitus on a direct basis. The Board has also considered whether the Veteran's tinnitus is secondary to his service-connected hearing loss. The October 2019 examiner, in support of the negative nexus opinion, explained the significant difference in the time of the onset of hearing loss and tinnitus, which would indicate separate etiologies. The Board finds the October 2019 opinion to be highly probative. It is based on a comprehensive review of the Veteran's case and history, to include an in-person examination, VA claims file, and medical literature. As such the opinion is highly probative. Finding the October 2019 medical opinion to be the most probative evidence of record, and weighs against the Veteran's claim, the claim for tinnitus must be denied. REASONS FOR REMAND 3. Squamous cell cancer of right hand, face, and ears. The Veteran has claimed entitlement to service connection for squamous cell cancer of right hand, face, and ears, without specific contentions. Favorable findings pertaining to this claim include an August 2019 diagnosis of squamous cell cancer of skin for the face, ear, and right hand. Also, the Veteran's service in Danang, Republic of Vietnam and eligibility for presumptive service connection are also noted favorable findings (07/22/2020 Rating Decision Narrative). The question for the Board is whether the Veteran's diagnosis of squamous cell cancer of skin began during service or is at least as likely as not related to an in-service injury, event, or disease, to include his service in Vietnam, and presumed herbicide exposure. Squamous cell cancer of skin is not included in either the list of presumptive diseases associated with herbicide agent exposure at 38 C.F.R. § 3.307 or the list of chronic diseases enumerated under 38 C.F.R. § 3.309(a). As such, presumptive service connection pursuant to 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309 is not for application in this case. Review of the Veteran's service treatment records do not reveal, nor does the Veteran contend, in-service complaints of, treatment for, or diagnosis with squamous cell cancer of the skin. His service in Vietnam and presumed exposure to herbicides is of record. Private treatment records show the Veteran was not diagnosed with squamous cell cancer of the skin until 2015, years after his separation from service. (01/11/2020 Claim Exam Enclosure). The Veteran was afforded a January 2020 VA examination for skin disabilities. The examiner did not include an opinion with the examination addressing whether the Veteran's squamous cell cancer is related to service, to include his service in Vietnam, and presumed herbicide exposure. In its decision, the RO noted a January 2020 VA letter requesting a medical opinion on this issue, indicating that none had been received to date (07/22/2020 Rating Decision Narrative, pg. 4). The Board interprets this as pre-decisional acknowledgement that such an opinion is pertinent. Further, the Board finds the absence of this opinion to be a pre-decisional duty to assist error because the Veteran's service record includes Vietnam service and presumed herbicide agent exposure. Having already obtained an examination, the VA should have obtained an opinion that addresses contentions of nexus to service suggested by the Veteran and the record prior to making a decision in this case. Having found a pre-decisional duty to assist error has occurred, the Board finds remand is required for a nexus opinion as to direct service connection. 4. Residuals, right arm, due to basal cell carcinoma. The Veteran has claimed entitlement to service connection for residuals of right arm due to basal cell carcinoma. With regard to the residuals, right arm carcinoma, favorable findings include that the Veteran has been diagnosed with a disability. The Veteran's VA examination dated January 9, 2020 confirmed diagnoses of scars status post squamous cell carcinoma excisional biopsies and skin grafts (07/22/2020 Rating Decision Narrative). The medical evidence of record suggests while the Veteran did not have carcinoma basal cell carcinoma on his right arm, skin grafts were taken from his right arm in the treatment of the skin cancer on other parts of his body (01/11/2020 C&P Exam, pg. 2). As the Veteran's claim for skin cancer of various parts of the body is remanded, the Board must remand the issue of residuals of right arm, due to basal cell carcinoma because a successful service connection claim for the skin cancer resulting in skin grafts from the arm would impact the outcome of this claim. As the claims are inextricably intertwined, remand of these claims is also necessary. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: Forward the claims file to the January 2020 examiner if available (if not available, to a comparably qualified and appropriate clinician) for an addendum opinion consistent with this remand. If the following cannot be addressed without an examination, an examination should be scheduled. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed squamous cell cancer disability is a result of service or any incident occurring during service, to include the Veteran's service in Vietnam and presumed exposure to herbicide agents. The examiner is reminded to consider the Veteran's lay reports, and a reason must be provided if the Veteran's lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran's contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any inservice injury or event, the examiner should include that information in his remarks. The examiner should reconcile any conflicting medical evidence of record to the extent possible. A comprehensive rationale for all opinions expressed must be provided. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.