Citation Nr: 21007161 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-04 997 DATE: February 8, 2021 ORDER Entitlement to service connection for actinic keratosis, claimed as facial skin cancer, is denied. Entitlement to service connection for tremors is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s current actinic keratosis, which he claimed as facial skin cancer, began during his active service or is otherwise related to an in-service event, injury, or disease, to include exposure to herbicide agents. 2. The preponderance of the evidence is against finding that the Veteran’s current tremors began during his active service or are otherwise related to an in-service event, injury, or disease, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for actinic keratosis, claimed as facial skin cancer, have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tremors have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1951 to March 1972. In December 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in February 2020 and September 2020 with instructions to the Agency of Original Jurisdiction (AOJ) to provide the Veteran with examinations and obtained opinions as to his claimed facial skin cancer and tremors. Examinations and opinions that provide the information necessary to render a decision as to those claimed disabilities were obtained in October 2020. Therefore, the Board finds that VA at least substantially complied with the February 2020 and September 2020 remands. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Service Connection 1. Entitlement to service connection for facial skin cancer The Veteran contends that he has facial skin cancer that is etiologically related to in-service exposure to herbicide agents. In its February 2020 decision, the Board found that, resolving all doubt in the Veteran’s favor, he was exposed to herbicide agents during his active military service in Thailand. Therefore, in-service exposure to herbicide agents has been conceded in this case. 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). In addition, certain diseases may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents while on active service, even when there is no evidence of such exposure during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Generally, those provisions apply when an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include his in-service exposure to herbicide agents. The Board concludes that, although the Veteran has a current diagnosis of actinic keratosis and in-service exposure to herbicide agents has been conceded, the preponderance of the evidence weighs against finding that the Veteran’s actinic keratosis began during his active service or is otherwise related to an in-service injury, event, or disease. Initially, the Board notes that the record does not show that the Veteran has been diagnosed with facial skin cancer. Rather, he has been diagnosed with actinic keratosis, which the October 2020 VA examiner characterized as pre-cancerous skin lesions. Because the Veteran was not diagnosed with facial skin cancer during or proximate to the claim period, he cannot be service connected for that disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Regarding the Veteran’s diagnosed actinic keratosis, that disability is not enumerated in the list of diseases associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). Therefore, it may not be service connected on a presumptive basis under the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6). However, a claimant may still establish service connection with proof of direct causation if the presumptive provisions are not met. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In this case, the Veteran’s service treatment records do not show that he was diagnosed with actinic keratosis during his active service. The medical treatment records do not show that he was diagnosed with actinic keratosis until many years after his separation from active service. Therefore, service connection based on in-service incurrence is not warranted. Regarding the Veteran’s contention that his actinic keratosis is etiologically related to in-service exposure to herbicide agents, the October 2020 VA examiner opined that it is less likely than not that such an etiological connection exists. As a rationale for that opinion, the examiner explained that the peer-based medical literature does not support any causal relationship between herbicide exposure and actinic keratosis. Actinic keratosis is most common in light-skinned people and is related to sun exposure. There is no established medical nexus related to exposure to herbicide agents. The Board finds the examiner’s opinion to be probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data, including citations to references used in formulating the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran has not contented, and the record does not show, that his actinic keratosis may be etiologically related to in-service sun exposure. When asked by his representative at the December 2019 Board hearing whether he was exposed to much sun during service, the Veteran denied such exposure, explaining that he spent most of his time in the barracks when he was not in an office working. Therefore, service connection based on in-service sun exposure is not warranted. The Board acknowledges the Veteran’s belief that his actinic keratosis is related to in-service exposure to herbicide agents. The Veteran is not considered competent to provide a nexus opinion regarding the issue because the issue is medically complex, as it requires knowledge of the pathology of actinic keratosis and their medically accepted causes. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, his statements are not entitled to probative value, and they do not weigh against the probative value of the October 2020 VA examiner’s opinion. In summary, the preponderance of the evidence is against finding that the Veteran’s current actinic keratosis, which he claimed as facial skin cancer, began during his active service or is otherwise related to an in-service event, injury, or disease, to include exposure to herbicide agents. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tremors The Veteran contends that he has tremors that are etiologically related to in-service exposure to herbicide agents. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include his in-service exposure to herbicide agents. The Board concludes that, although the Veteran has a current diagnosis of essential tremors and in-service exposure to herbicide agents has been conceded, the preponderance of the evidence weighs against finding that the Veteran’s essential tremors began during his active service or are otherwise related to an in-service injury, event, or disease. The Board is cognizant that the National Defense Authorization Act for Fiscal Year 2021 added Parkinsonism to the list of diseases presumptively associated with exposure to herbicide agents. However, the probative evidence is against finding that the Veteran has been diagnosed with Parkinson’s disease or Parkinsonism. Specifically, in June 2006, M. Merren, M.D., emphasized in a letter to the Veteran the at he has essential tremors and does not have Parkinson’s disease. The October 2020 VA examiner reviewed the record and found that it shows the Veteran has essential tremors and that medical testing has effectively ruled out Parkinson’s disease. A November 2020 VA examiner similarly found that the Veteran has a diagnosis of essential tremors and that the record does not support a diagnosis of Parkinson’s disease. Although the Veteran may believe that he has Parkinson’s disease, his assertions in that regard are not considered competent because he has not been shown to possess the medical knowledge and expertise required to render a diagnosis. See Kahana, 24 Vet. App. 428; Jandreau, 492 F.3d at 1376-77. Therefore, the Board concludes that the Veteran does not have a diagnosis of Parkinson’s disease or Parkinsonism such that service connection is warranted based on the additions made under the National Defense Authorization Act for Fiscal Year 2021. The Veteran’s diagnosed essential tremors are not enumerated in the list of diseases associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). Therefore, they may not be service connected on a presumptive basis under the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6). The Board will therefore consider whether service connection is warranted on a direct basis. See Combee, 34 F.3d at 1043. In this case, the Veteran’s service treatment records do not show that he was diagnosed with tremors during his active service. The medical treatment records show that he has provided a medical history of first experiencing the essential tremors in 1977, several years after his separation from active service. He similarly testified at the September 2019 Board hearing that he first stated having essential tremors in 1977 or 1978. Therefore, service connection based on in-service incurrence is not warranted. Regarding the Veteran’s contention that his essential tremors are etiologically related to in-service exposure to herbicide agents, the October 2020 VA examiner opined that it is less likely than not that such an etiological connection exists. As a rationale for that opinion, the examiner explained that a review of the medical literature failed to find any peer-reviewed studies that establish a causal link between herbicide exposure and the development of essential tremors. The National Academy of Sciences in its 2016 review of evidence linking medical conditions to herbicide exposure determined that there is no rational reason to exclude Parkinson-like symptoms from the presumptive relationship and that the etiological link should be decided on a case-to-case basis. However, in the Veteran’s case, the essential tremors have been present for a significant period of time and he has undergone neurological evaluations and radiology studies that have confirmed the diagnosis of essential tremors and effectively ruled out Parkinson’s Disease. Although the etiology of essential tremors is not fully understood, there appears to be a strong genetic component. The Veteran has told his medical treatment providers that his father and paternal grandfather also had a tremor. Given the Veteran’s family history of tremors, it is more likely than not that the Veteran’s essential tremor condition has a congenital etiology. The Board finds the examiner’s opinion to be probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data, including citations to references used in formulating the opinion. Nieves-Rodriguez, 22 Vet. App. at 304. The opinion is also consistent with the other evidence of record, including the many medical treatment records that characterize the Veteran’s essential tremor as being familial in origin. The Board acknowledges the Veteran’s belief that his essential tremor is related to in-service exposure to herbicide agents. The Veteran is not considered competent to provide a nexus opinion regarding the issue because the issue is medically complex, as it requires knowledge of pathology of essential tremors and their medically accepted causes. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, his statements are not entitled to probative value, and they do not weigh against the probative value of the October 2020 VA examiner’s opinion. In summary, the preponderance of the evidence is against finding that the Veteran’s current essential tremors began during his active service or are otherwise related to an in-service event, injury, or disease, to include exposure to herbicide agents. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49 (1990).   REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. An October 2020 VA examiner opined that it is less likely than not that the Veteran’s hypertension was caused by an in-service event, injury, or illness because, although recent studies have found an association between high exposure to herbicides and hypertension, those studies are limited and did not include risk factors for hypertension. The medical literature indicates that the known risk factors for hypertension include age, race, obesity, physical inactivity, hypercholesteremia, family history, tobacco use, diet, and alcohol use. The examiner noted that the record shows the Veteran has risk factors for development of hypertension of coronary artery disease, peripheral vascular disease, and hyperlipidemia. He concluded that it is more likely than not that the Veteran’s history of co-morbid medical conditions is related to his hypertension. The Board finds that the examiner’s opinion raises the issue of entitlement to service connection on a secondary basis because the Veteran is service connected for ischemic heart disease, which the examiner listed as a risk factor for developing hypertension. However, the opinion is inadequate to address that issue because the Veteran also has nonservice-connected conditions that the examiner listed as risk factors, including peripheral vascular disease, hyperlipidemia, and an extensive history of tobacco use. Therefore, the Board finds that the issue must be remanded for an opinion as to secondary service connection. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension is proximately due to a service-connected disability, to include ischemic heart disease. If not, then the clinician should also provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension is aggravated beyond its natural progression by a service-connected disability, to include ischemic heart disease. The clinician must consider the October 2020 VA examiner’s opinion, including that examiner’s explanation that there are a number of risk factors for developing hypertension, including include age, race, obesity, physical inactivity, hypercholesteremia, family history, tobacco use, diet, alcohol use, obstructive sleep apnea, kidney disease, adrenal gland tumors, thyroid problems, and use of certain drugs and medications. The clinician should discuss any such risk factors that are relevant to the Veteran’s case. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.