Citation Nr: 21007309 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-23 811 DATE: February 9, 2021 ORDER Entitlement to service connection for a skin disorder of the head, to include post-operative lipoma and lumps on the scalp and back of the neck, claimed as due to herbicide exposure is denied. Entitlement to service connection for an arthritic disability manifested by multiple painful joints, to include as secondary to a service-connected disability, is denied. FINDINGS OF FACT 1. The Veteran had service in Vietnam, and herbicide exposure during such service is presumed. 2. A current skin disability was not incurred in service, did not manifest within a year of service separation, has not been chronic or continuous since service, and is not due to disease, injury, or other incident of service, to include herbicide exposure. 3. A current skin disability is not due to or aggravated by a service-connected disability or disabilities. 4. A current disability characterized by arthritis or joint pain was not incurred in service, did not manifest within a year of service separation, has not been chronic or continuous since service, and is not due to disease, injury, or other incident of service, to include herbicide exposure. 5. A current disability characterized by arthritis or joint pain is not due to or aggravated by a service-connected disability or disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a skin disorder of the head, to include post-operative lipoma and lumps on the scalp and back of the neck, to include as due to exposure to herbicides have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for an arthritic disability manifested by multiple painful joints, claimed as secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1971 to April 1972. He served in the Republic of Vietnam from September 1971 to April 1972. These matters come to the Board of Veterans’ Appeals (Board) on appeal from May 2009 and August 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This case was previously before the Board in June 2015, August 2017, May 2018, and May 2019, at which times 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 military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran asserts that the claimed disabilities are due to in-service exposure to herbicides. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). “Service in the Republic of Vietnam” means actual service in country in Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (VA’s requirement that a Veteran must have “stepped foot” on landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute); VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam-era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off- shore of the Republic of Vietnam is not qualifying service in Vietnam). In the present case, the Veteran’s DD-214 reflects service in Vietnam. For such veterans, exposure to herbicides is presumed. See 38 C.F.R. § 3.309(e). If the veteran was exposed to an herbicide agent during service, certain specified diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. These diseases include chloracne or other acneform disease consistent with chloracne, porphyria cutaneous tarda, and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi’s sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). 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. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Finally, service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In the present case, the Veteran has been granted service connection for posttraumatic stress disorder (PTSD), diabetes mellitus, peripheral neuropathy of the upper and lower extremities, tinnitus, bilateral hearing loss, and hypertension. 1. Entitlement to service connection for a skin disorder of the head, to include post-operative lipoma and lumps on the scalp and back of the neck, to include as due to exposure to herbicides The Veteran seeks service connection for a skin disability of the head, to include the scalp and the back of the neck. He asserts this disability was incurred in service and has been chronic since that time. He also asserts this disability is due to herbicide exposure in service, and service connection is therefore warranted. Considering first the service treatment records, these are negative for any diagnosis of or treatment for a skin disability of the head, neck, or scalp. On examination for service separation in April 1972, no abnormalities or disabilities of the skin of the head were noted. Post-service, the first reports of a skin disability of the head date to 2003, when the Veteran underwent surgical removal at a private hospital of skin masses behind his left ear and on his scalp. In September 2004, the Veteran reported to a VA healthcare provider a recurrent rash of the forehead and upper chest. He also reported a history of surgical removal of lipomas from his scalp and behind his ear. Thus, his first diagnosis of a skin disability dates to 2003, more than 30 years after service separation. This lengthy period without complaint or treatment is evidence that there was not ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see, e.g., Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). Thus, based on these facts, the Board must conclude that a current disability of the skin did not have its onset in service, did not manifest within a year thereafter, and has not been chronic or continuous since service separation. The evidence of record also does not establish that a current skin disability is related to service, to include herbicide exposure therein, or a service-connected disability. On VA examination in September 2017, a history of an unspecified rash was noted. According to the examination report, the Veteran first began to experience a facial rash in 2009. Dermatitis was diagnosed. Regarding the etiology of this disability, the examiner opined that it was less likely than not related to service, as dermatitis was not among the disabilities which were presumed to be related to herbicide exposure. Another VA examination was afforded the Veteran in October 2019. A history of cyst removals in 2011 and 2017 was noted by the examiner, along with asymptomatic dermatitis, with onset in approximately 2004. The Veteran reported his intermittent rash began in service in 1972, and he has used various topical creams since that time. The examiner found no active dermatological disease on examination of the Veteran. Regarding the etiology of any skin disability, the examiner opined it was less likely than not that any current skin disability had its onset in or was related to service, as there was no evidence of diagnosis of or treatment for a skin disability in the service treatment records. The examiner also opined it was less likely than not that any current skin disability was the result of or was related to a service-connected disability, as these skin diseases were not medically related to any disability for which the Veteran had been awarded service connection. In the absence of competent evidence establishing a nexus between any current skin disability and service, or a service-connected disability, service connection must be denied. Additionally, skin disabilities such as lipomas, cysts, and dermatitis are not among the diseases for which service connection is presumed in veterans with confirmed herbicide exposure. The Veteran has also not presented competent evidence of a nexus between a current skin disability and his herbicide exposure in service. The Veteran has asserted that a current skin disability first manifested during service. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). While the Veteran is competent to report such observable symptomatology as a skin rash, he did not report or seek treatment for such a disability during service, according to the service treatment records, which are silent for such treatment. Additionally, he did not report or seek treatment for a skin disability until many years after service, and initially reported onset of his skin disabilities on or after 2000. Thus, the Board does not find his later statements regarding in-service onset of a skin disability to be credible. Regarding the Veteran’s assertions that his skin disabilities are related to herbicide exposure in service, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Dermatological disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a skin disability on any basis, as this disability was not incurred in service, did not manifest within a years of service separation, has not been chronic or continuous since service, and may not be presumed to have been incurred therein. Additionally, a current skin disability is not due to or aggravated by a service-connected disability or disabilities. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for an arthritic disability manifested by multiple painful joints, to include as secondary to a service-connected disability The Veteran seeks service connection for an arthritic disability characterized by pain and swelling of the joints. He asserts this disability was incurred in service and has been chronic since that time. He also asserts this disability is due to herbicide exposure in service and/or a service-connected disability, and service connection is therefore warranted. Considering first the service treatment records, these are negative for any diagnosis of or treatment for arthritis or any other joint disability or disability characterized by joint pain. An April 1972 service separation examination was negative for any abnormalities of the joints. Post-service, the first reports of any disability of the joints dates to approximately 2011, when the Veteran reported arthralgia and joint pain to his VA healthcare provider. Thus, his first diagnosis of an arthritic disability dates to 2011, more than 35 years after service separation. This lengthy period without complaint or treatment is evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See e.g., Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the Board may consider a lack of notation of a medical condition or symptoms where such notation would normally be expected). Thus, based on these facts, the Board must conclude that a current arthritic disability did not have its onset in service, did not manifest within a year thereafter, and has not been chronic or continuous since service separation. The evidence of record also does not establish that a current arthritic or joint pain disability is related to service, to include herbicide exposure therein, or a service-connected disability. The Veteran was afforded a VA examination in September 2017. His claims file was reviewed in conjunction with the examination. He reported onset of pain of the feet and hands in approximately 2009. Upon examination of the Veteran, gout of the left great toe was diagnosed. Onset of this disability was in 2016, according to the examiner. Regarding the etiology of this disability, the examiner opined that it was less likely than not such a disability was related to service. The examiner found no evidence of treatment of such a disability in service. The examiner also noted that medical evidence did not suggest a link between herbicide exposure and the subsequent development of gout. In the absence of competent evidence establishing a nexus between any current arthritic disability and service, or a service-connected disability, service connection must be denied. While the Veteran has been granted service connection for several disabilities, to include PTSD, diabetes mellitus, peripheral neuropathy of the upper and lower extremities, tinnitus, bilateral hearing loss, and hypertension, no competent evidence has been presented that any current arthritic condition is due to or aggravated by a service-connected disability or disabilities. Additionally, neither gout nor arthritis are among the diseases for which service connection is presumed in veterans with confirmed herbicide exposure. The Veteran has also not presented competent evidence of a nexus between arthritis or gout and his herbicide exposure in service. The Veteran has asserted that a current arthritic or joint pain disability first manifested during service. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). While the Veteran is competent to report such observable symptomatology as joint pain, he did not report or seek treatment for such a disability during service, according to the service treatment records, which are silent for such treatment. Additionally, he did not report or seek treatment for a disability characterized by joint pain until many years after service, and initially reported onset of his joint pain in approximately 2009. Thus, the Board does not find his statements regarding in-service onset of an arthritic disability to be credible. Regarding the Veteran’s assertions that his joint pain disability is related to herbicide exposure in service, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Orthopedic disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for an arthritic or joint disability on any basis, as this disability was not incurred in service, did not manifest within a years of service separation, has not been chronic or continuous since service, and may not be presumed to have been incurred therein. Additionally, a current arthritis disability is not due to or aggravated by a service-connected disability or disabilities. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.