Citation Nr: 21011936 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-05 947 DATE: March 3, 2021 ORDER Entitlement to service connection for seizures is denied. Entitlement to service connection for a skin disorder, claimed previously as skin rash, is denied. Entitlement to service connection for a kidney disorder is denied. Entitlement to service connection for residuals associated with removal of the right testicle is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a skin disorder under the right eye, claimed previously as a right eye bruise, is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. The Veteran’s seizures were not incurred during active duty and did not result from an in-service injury, illness, or event, to include herbicide exposure. 2. The Veteran has dermatofibromas that were not incurred during active duty and that did not result from an in-service injury, illness, or event, to include herbicide exposure. 3. The Veteran’s kidney disorder was not incurred during active duty and did not result from an in-service injury, illness, or event, to include herbicide exposure. 4. The Veteran had benign masses on his right testicle that required an orchiotomy in 1975 and were not incurred during active duty and did not result from an in-service injury, illness, or event, to include herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for seizures are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a skin disorder, claimed previously as skin rash, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for a kidney disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for service connection for residuals associated with removal of the right testicle are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from March 1970 through November 1971, to include service in Vietnam. The issues on appeal arise from a February 2015 rating decision. The Veteran testified during an October 2018 Board hearing. A transcript is of record. The matter was remanded previously by the Board in May 2019. The agency of original jurisdiction (AOJ) has undertaken the development directed in the Board remand. The issues on appeal now return to the Board for review. Service Connection 1. Entitlement to service connection for seizures. The Veteran claims entitlement to service connection for seizures. He testified during his Board hearing that he began experiencing seizures sometime during the mid-1970s and that he continues to experience them intermittently. He theorized that his seizures may have resulted from herbicide exposure during service. It is undisputed that the Veteran served in Vietnam and he is therefore presumed as having been exposed to herbicides during such service. 38 C.F.R. § 3.307 (a)(6)(iii). Nonetheless, the regulations do not provide for a presumptive relationship between a seizure disorder and in-service herbicide exposure. 38 C.F.R. § 3.309 (e). Subject to the above, the preponderance of the evidence shows that no etiological relationship exists between the Veteran’s seizures and his active duty service, to include in-service herbicide exposure. As mentioned, the Veteran has stated that his seizures began occurring after his separation from active duty in November 1971. During a February 2020 examination, he reported that he had previously undergone a heart study and a brain CT as part of a workup to determine the precise nature and pathology of his seizures. He acknowledged that those studies were negative and did not report any subsequent follow-up evaluation or treatment. Records pertaining to the previous workup for the Veteran’s seizures, to include the aforementioned heart study and brain CT, are not available. Although the record shows that the Veteran has been afforded opportunities to participate meaningfully in the development of his claim, he has not provided any information as to the whereabouts of such records. Under the circumstances, it is presumed that those records no longer exist. There is no indication in the available post-service records that the Veteran has undergone more recent treatment for his seizures. The February 2020 examination was grossly normal despite the Veteran’s reported history of ongoing intermittent seizures. The examiner noted that there is no objective evidence either on examination or in the Veteran’s medical history that indicates that the Veteran has a chronic seizure disorder. Further, the examiner observed, the service treatment records and the Veteran’s separation examination revealed no evidence of any seizure-related concerns during the Veteran’s service. Finally, the examiner observed that the medical literature does not indicate the presence of any relationship between a seizure disorder and herbicide exposure. Ultimately, to the extent that the Veteran has described the occurrence of intermittent seizures, the examiner concludes that it is less likely as not that the Veteran’s seizures were incurred during service or caused by an in-service injury, illness, or event, to include in-service herbicide exposure. The examiner’s negative opinion is not rebutted by contrary opinions, and moreover, are consistent with the Veteran’s medical history and the other evidence in the record. For this reason, the Board finds the examiner’s opinion persuasive. The preponderance of the evidence shows that the Veteran’s seizures were not incurred during active duty service and did not result from an in-service injury, illness, or event, to include herbicide exposure. The Veteran is not entitled to service connection for seizures. To that extent, this appeal is denied. 2. Entitlement to service connection for a skin disorder, claimed previously as skin rash. The Veteran claims entitlement to a skin disorder described initially in his November 2013 claim as a rash. During his October 2018 Board hearing, he elaborated that the claimed disorder was multiple intermittent growths that occurred on his neck, left hip, and left leg that were first manifest in 1972, approximately a year after he was separated from service. As mentioned, the Veteran is presumed as having been exposed to herbicides during service. The Board observes that chloracne and other acneform diseases consistent with chloracne may be presumed as having resulted from in-service herbicide exposure. 38 C.F.R. § 3.309 (e). As discussed fully below, the evidence shows that the Veteran’s claimed skin disorder is not chloracne or an acneform disease that qualifies for the aforementioned presumption. Accordingly, service connection for the Veteran’s specific claimed disorder cannot be granted based on the presumptions under 38 C.F.R. § 3.309 (e). Subject to the same, the evidence shows also that there is no etiological relationship between the Veteran’s claimed skin disorder and his active duty service. Consistent with the Veteran’s assertions and testimony that his claimed skin disorder began after his separation from service, the service department records are entirely silent for skin-related complaints, treatment, diagnosis, or objective findings during service. Although the Veteran testified during his Board hearing that he underwent three separate procedures to remove skin growths from his neck, left hip, and left leg within the time frame from 1972 through 1975, there are no available records pertaining to such treatment. The Veteran has also provided no information as to the whereabouts of those records. In conjunction with the same, the available private and treatment records reflect no treatment related to the Veteran’s skin disorder. The Veteran was afforded a skin examination in February 2020, at which time, he demonstrated a benign appearing, raised, darkened lesion on the surface of his left upper arm. No other skin abnormalities were observed. The examiner diagnosed a dermatofibroma and opined that it is less likely than not that the condition occurred during service or resulted from an in-service injury, illness, or event. On review of the medical literature, the examiner noted that dermatofibromas are common cutaneous soft tissue lesions with an unknown pathogenesis although they have been sometimes linked with direct trauma and insect bites. Notably, and subject to the same, the examiner notes no medical literature that suggests any relationship between dermatofibromas and herbicide exposure. Based on the same, the examiner concluded that it is less likely as not that the Veteran’s dermatofibroma was incurred during service or caused by an in-service injury, illness, or event. The examiner’s negative opinion is not rebutted by any contrary opinion in the record. Although the Veteran has theorized that his condition may be related in some way to in-service herbicide exposure, he does not direct the Board to any opinion in the record or other medical authority that supports his theory. In contrast, the examiner’s opinion is consistent with the Veteran’s medical history and the other evidence in the claims file, and moreover, appears to be supported by current medical literature. For this reason, the examiner’s negative opinion is persuasive. The Board acknowledges that the specific diagnosis for the skin growths that were removed from the Veteran in the 1970s is not documented in the record. In the absence of any evidence relating to treatment and removal of those specific growths and where the Veteran was unable to recall during his Board hearing the specific diagnosis rendered at that time, a precise diagnosis for those specific growths would be speculative. Subject to that analysis, the Board notes that the Veteran did present during the February 2020 examination the lesion on his left arm that was ultimately diagnosed as a dermatofibroma. There is no evidence in the record that suggests that the condition noted during the February 2020 examination is distinct from those that were treated in the 1970s. The preponderance of the evidence shows that the Veteran has experienced dermatofibromas that were neither incurred during active duty nor resulted from an in-service injury, illness, or event, to include herbicide exposure. The Veteran is not entitled to service connection for a skin disorder. To that extent, this appeal is denied. 3. Entitlement to service connection for a kidney disorder. The Veteran claims also that he is entitled to service connection for an unspecified kidney disorder. During his Board hearing, he testified that he began experiencing kidney problems in approximately 1980. He recalled that he sought treatment for symptoms that he believed were back pain but was told instead by physicians that he had a kidney disorder. Although the Veteran identified prior kidney-related treatment at Baptist Hospital Family Physicians, he has provided no information relating to the location of the corresponding treatment records. The regulations do not recognize a presumptive relationship between kidney disorders and in-service herbicide exposure. Accordingly, service connection for the Veteran’s claimed kidney disorder cannot be granted on any presumption under 38 C.F.R. § 3.309 (e). Also, the evidence shows that the Veteran’s claimed kidney disorder was not incurred during service and did not result from an in-service injury, illness, or event. Service department records reflect no in-service complaints by the Veteran of any kidney-related symptoms and no in-service treatment, findings, or diagnoses related to the Veteran’s kidney. Similarly, post-service treatment records reflect no kidney-related complaints or treatment. During a February 2020 examination, the Veteran reported that he experienced ongoing kidney pain usually after driving for long periods and after drinking soda. Notably, he denied any history of renal dysfunction or urolithiasis. A medical examination conducted by the examiner was normal, and, laboratory tests for renal function showed no abnormalities. Overall, the examiner concluded that there was no indication of any kidney-related pathology. The examiner noted that the Veteran’s present complaints are entirely subjective and are not supported by any objectively observed abnormalities. Still, to the extent that the Veteran was reporting symptoms that he believes are kidney-related, the examiner opined that it is less likely as not that the Veteran’s kidney disorder was incurred during service or caused by an in-service injury, illness, or event, including herbicide exposure given the apparent absence of any kidney-related problems during service and at the time of his separation examination. The examiner’s negative opinion is not rebutted by contrary evidence in the records, and indeed, is consistent with the Veteran’s medical history and other evidence in the record. That opinion is persuasive. The preponderance of the evidence shows that the Veteran’s kidney problems were not incurred during service and did not result from an in-service injury, illness, or event. The Veteran is not entitled to service connection for a kidney disorder. To that extent also, this appeal is denied. 4. Entitlement to service connection for residuals associated with removal of the right testicle. The Veteran claims entitlement to residuals associated with removal of his right testicle in 1975. He asserts generally in his Board hearing testimony that the condition that caused his right testicle to be removed resulted from in-service herbicide exposure. March 1975 treatment records from North Carolina Baptist Hospital show that the Veteran was evaluated at that time for firm masses in his right testicle. Veteran underwent an orchiotomy to remove the testicle in March 1975. A pathology of the masses revealed no malignancy. Records for subsequent VA and private treatment note no recurrence of the masses in the Veteran’s other testicle or elsewhere in the Veteran’s body. Similarly, the records reflect no complaints, findings, or treatment for any residuals associated with the Veteran’s 1975 orchiotomy. The regulations provide no presumption of an etiological relationship between benign tumors such as those treated for the Veteran in March 1975 and in-service herbicide exposure. 38 C.F.R. § 3.309 (e). Further, the evidence shows that the benign tumors and orchiotomy are not related etiologically to an injury, illness, or event that occurred during the Veteran’s active duty, to include in-service herbicide exposure. In that regard, the March 1975 hospital records express no opinion as to the cause or origin of the benign tumors. During a February 2020 examination, the examiner opined that it is less likely as not that the Veteran’s orchiotomy was necessitated by the Veteran’s active duty service. As rationale, the examiner observed that the Veteran’s service treatment records are silent for any in-service complaints or treatment related to abnormalities in the Veteran’s testicles. Moreover, the examiner noted, the March 1975 hospital records note that the Veteran did not observe any abnormalities in his right testicle until after October 1974. To that end, the examiner appears to emphasize that the Veteran did not notice the abrupt onset of the tumors in his testicle until years after he was separated from service. The examiner added that there is no evidence in the record that shows a nexus between the Veteran’s right testicle removal and in-service herbicide exposure. Indeed, the Board notes no information or evidence in the record that would even suggest such a relationship. Although the Veteran has theorized that his right testicle orchiotomy was necessitated by his in-service herbicide exposure, he is not competent to render a probative opinion as to such a complex medical question. Though the Board is sympathetic to the Veteran’s belief that his right testicle was removed due to conditions caused by his in-service herbicide exposure, the Board is unable to assign significant probative weight to his assertion, and also, sees no information or evidence in the record that even suggests such an etiological relationship. In contrast, the examiner’s negative opinion is not contradicted by other opinions or information in the record, and moreover, is consistent with the Veteran’s medical history and other evidence in the record. The examiner’s opinion is persuasive. The preponderance of the evidence shows that the benign tumors in the Veteran’s right testicle and orchiotomy in 1975 were not incurred during service, and, did not result from an in-service injury, illness, or event. REASONS FOR REMAND 1. Private treatment records relating to the Veteran’s August 2016 right knee replacement and subsequent convalescent care and follow-up. VA treatment records dated July 2017 reflect that the Veteran reported that he underwent a total right knee replacement procedure on August 27, 2016, conducted by Dr. J.V. in Winston-Salem, North Carolina. A review of the claims file shows that records from Dr. J.V. and records pertaining to the August 2016 surgery and post-surgical convalescent care and follow-up treatment are not associated with the record. Further, there is no indication in the record that VA has made any previous attempt to locate and obtain those private treatment records. Such efforts should be undertaken at this time. 38 C.F.R. § 3.159 (c)(1). 2. Hypertension medical opinion. As noted above, the Veteran is presumed as having been exposed to herbicides during service. The Veteran testified during his Board hearing that he has remained under treatment for hypertension since the late 1970s. During a February 2020 hypertension examination, the examiner opined that it is less likely as not that the Veteran’s hypertension was incurred during service or caused by an in-service injury, illness, or event, to include herbicide exposure. As to the possibility of a relationship between the Veteran’s hypertension and in-service herbicide exposure, the examiner noted only that the regulations do not recognize a presumptive etiological relationship. The examiner noted correctly that the current regulations do not identify hypertension as being among those diseases that may be presumed as having resulted from in-service herbicide exposure. 38 C.F.R. § 3.309(e). Nonetheless, the National Academy of Sciences (NAS) 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. See Nat'l Acad. of Sci., Inst. of Med., Veterans and Agent Orange: Update 11 (2018), available at https://www.nap.edu/resource/25137/111318_VAO_2018_highlights.pdf (accessed on January 25, 2021). Given the 2018 NAS update, there is an indication that the Veteran's diagnosed hypertension may be associated with his herbicide agent exposure, thus triggering VA's duty to obtain a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Accordingly, VA must obtain a medical opinion as to whether the Veteran’s hypertension was caused by or resulted from in-service herbicide exposure. 38 C.F.R. § 3.159 (c)(4). 3. Skin examination for the claimed disorder under the right eye. The Veteran claims entitlement to service connection for a skin disorder located under his right eye. Although he initially characterized the claimed disorder as being a “bruise,” he explained and demonstrated during his Board hearing that the disorder in question is an area of discoloration under the eye. Indeed, a February 2020 examination conducted by a VA optometrist opined that the area of darkened skin underneath the Veteran’s right eye is “similar to that of a birth mark.” Given that the nature of the apparent diagnosis for the Veteran’s claimed condition appears to be dermatological in nature, the Board is of the opinion that a proper and adequate examination would be conducted as part of a skin examination by an examiner who is more qualified to render a dermatological skin opinion. Under the circumstances, the Veteran should be afforded a skin examination of the area of discoloration located under his right eye. 38 C.F.R. § 3.159 (c)(4). 4. Left knee examination. The Veteran contends that he has a left knee disorder that has resulted from and/or been aggravated by his claimed right knee disorder. A February 2020 examination of the Veteran’s left knee revealed decreased flexion and medial instability in the knee diagnosed by the examiner as left knee strain and instability. Although the examiner opined that it is less likely than not that the Veteran’s knee condition is related etiologically to his right knee disorder, the examiner’s opinion appears to be based largely on her determination that the evidence does not show a “current, chronic knee diagnosis.” The examiner provides no explanation as to why the lack of evidence showing chronicity is significant, particularly in view of the Veteran’s assertion that he began experiencing problems in his left knee at some point after his right knee total replacement procedure in August 2016. Similarly, she gives no explanation as to why the absence of evidence showing chronicity necessarily rules out the possibility that the Veteran’s left knee strain was aggravated by his right knee disorder. The negative opinions expressed by the February 2020 examiner are insufficient. Under the circumstances, the Veteran should be afforded a new examination of his left knee to determine the nature of any current left knee disorder and whether any diagnosed disorder was caused and/or aggravated by his right knee disorder. 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his claims on appeal. Records for VA treatment received by the Veteran since March 2020 and any relevant private treatment identified by the Veteran and not already of record should be obtained. If the records are not available, such unavailability should be documented in the record. The Veteran should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. Obtain private treatment records from Dr. J.V. in Winston-Salem, North Carolina and private hospital and treatment records from the Veteran’s August 2016 right knee total replacement surgery and subsequent convalescent care, physical therapy, and follow-up evaluation and treatment. If the records are not available, such unavailability should be documented in the record. The Veteran should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 3. After the development ordered in Paragraphs 1 and 2 above is complete, obtain a medical opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s hypertension was caused by or resulted from his conceded herbicide exposure during service. The claims file should be made available to the reviewing clinician and the reviewing clinician should review the claims file in forming the requested opinion. The reviewing clinician should provide a detailed rationale that explains fully all of the reasons for the given opinions. 4. After the development ordered in Paragraphs 1 and 2 above is complete, schedule the Veteran for a skin examination to determine the nature and etiology of the area of discoloration located under his right eye. The examiner should provide a diagnosis and for each diagnosed disorder, provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the diagnosed disorder was caused by or resulted from an in-service injury, illness, or event, to include herbicide exposure. The claims file should be made available to the examiner and the examiner should review the claims file in conjunction with the examination. The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions. 5. After the development ordered in Paragraphs 1 and 2 above is complete, schedule the Veteran for a left knee examination to determine the nature and etiology of the Veteran’s left knee disorder. The examiner should provide a diagnosis and for each diagnosed disorder, provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that: 1) the diagnosed disorder was caused by the Veteran’s right knee disorder; and/or, 2) the diagnosed disorder was aggravated by the Veteran’s right knee disorder. The claims file should be made available to the examiner and the examiner should review the claims file in conjunction with the examination. The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions, to include consideration and discussion of whether any diagnosed left knee condition resulted from or was aggravated by altered body mechanics caused by the Veteran’s right knee disorder (e.g., changes in gait, balance, or compensation for symptoms and impairment in the opposing knee). 6. After completion of the above development, the issues on appeal should be readjudicated. If the determination remains averse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Lee 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.