Citation Nr: 21010421 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-19 015 DATE: February 24, 2021 ORDER Entitlement to service connection for skin lesions, to include as secondary to herbicide exposure, is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for stroke residuals is remanded. FINDING OF FACT The Veteran’s skin lesions are not related to service, including exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for skin lesions, to include as secondary to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1957 to April 1959, and from May 1959 to June 1978. He passed away in August 2012. The appellant is the Veteran’s surviving spouse and she has been determined to be a valid substitute claimant. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter has been before the Board previously, most recently in March 2018. At that time, the Board, among other things, remanded the claim for service connection for skin lesions, to include as secondary to herbicide exposure, in order to obtain a VA medical opinion addressing the etiology of the condition. As the record reflects that a VA medical opinion was obtained in July 2020, the Board finds that there has been substantial compliance with the remand directives for the claim of service connection for skin lesions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the claims for service connection for hypertension and stroke residuals as part of the March 2018 decision, as intertwined issues with the claim for service connection for an acquired psychiatric disability. Service connection was subsequently granted for an acquired psychiatric disability, and VA medical opinions considering secondary service connection for hypertension and stroke residuals were obtained in August 2020. As explained in the remand portion of this decision, the VA medical opinions for the claims of service connection for hypertension and stroke residuals are insufficient, requiring further remand of those claims. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Entitlement to service connection for skin lesions, to include as secondary to herbicide exposure Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection may also be established presumptively for certain diseases listed in 38 C.F.R. § 3.309(e) for any veteran who was exposed to an herbicide agent as defined in 38 C.F.R. § 3.307(a)(6) during active duty service. Where, as here, a Veteran contends that a disability not found in 38 C.F.R. § 3.309(e) is related to exposure to herbicide agents, the Veteran may still present evidence to establish the nexus element on a direct, rather than a presumptive, basis. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The appellant contends that the Veteran’s skin lesions arose during service as a result of herbicide exposure in Vietnam. The record reflects that the Veteran had skin lesions and was diagnosed with skin cancer during the claim period. The appellant is thus able to establish the first element for service connection. The record also reflects that the Veteran was treated for skin conditions in service and is presumed to have been exposed to herbicide agents during service. The appellant is thus able to establish the second element for service connection. With respect to nexus, the July 2020 VA examiner opined that the Veteran’s skin conditions were less likely than not incurred in or caused by service. The VA examiner noted that there was no evidence of treatment for skin cancer in service and that the relevant medical literature did not support a connection between skin cancer and exposure to herbicide agents. The examiner observed that the documented incidents of skin conditions in service, including infections and a laceration, were temporary conditions that resolved prior to discharge. The examiner also explained that there was a lack of medical evidence to suggest that the infections in service could cause skin cancer. The Board finds the opinions of the July 2020 VA examiner to be probative on the nexus element. The opinions expressed were based on a review of the relevant records and medical literature and were supported by adequate rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, there are no contradictory medical opinions of record. While the Appellant and Veteran are competent to report the Veteran’s observable symptoms, there is no indication in the record that they are competent to provide an opinion as to the etiology of the Veteran’s skin conditions. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the probative opinions are against a finding of service connection, to include on a secondary basis to herbicide exposure, the claim for service connection for skin lesions is denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Hypertension and Stroke Residuals Service connection may be granted where a disability is proximately due to or the result of an already service-connected disability. 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability; and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Here, VA treatment records and the August 2020 VA medical opinion confirm that the Veteran had a hypertension diagnosis and that he had a stroke in 2009. The appellant contends that these disabilities were related to the Veteran’s service-connected acquired psychiatric disability. Specifically, the appellant contends that the sleep impairment caused by his psychiatric disability caused the Veteran’s hypertension and stroke. The appellant’s representative has cited medical research in support of this. The record reflects that the Veteran had a history of difficulty sleeping and that sleep impairment was a symptom of his acquired psychiatric disability. While VA medical opinions were obtained addressing the secondary service connection claims for hypertension and stroke, the opinions did not specifically address whether the Veteran’s conditions were related to his difficulty sleeping. As such, the Board finds the August 2020 VA medical opinions insufficient for adjudication of the claims for service connection for hypertension and stroke residuals as secondary to the Veteran’s acquired psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate). Accordingly, remand is warranted to address the relationship between the Veteran’s sleep impairment and his hypertension and stroke residuals. The matters are REMANDED for the following action: 1. Provide the entire claims file to a qualified clinician to obtain an addendum opinion regarding whether the Veteran’s hypertension and stroke residuals were (1) proximately due to his service-connected psychiatric disorder (including symptoms of sleep impairment), or (2) aggravated beyond their natural progression by his service-connected psychiatric disorder (including symptoms of sleep impairment). The examiner should consider the arguments and medical literature cited in the October 2017 Appellant’s Brief and address the general medical understanding of any link between sleep impairment and the development of chronic diseases. The examiner is advised that causation and aggravation are separate theories of entitlement and should be addressed separately. The examiner is further advised that aggravation means in increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation by establishing the baseline of severity of the hypertension or stroke residuals prior to aggravation. A complete rationale for the examiner’s opinions should be provided, citing to specific evidence of record and any relevant medical literature, as necessary. If the examiner cannot provide the requested opinions without resorting to speculation, it must be stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to provide an opinion. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community and not those of the examiner. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.