Citation Nr: 21015894 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-24 516 DATE: March 18, 2021 ORDER Entitlement to service connection for GERD is denied. Entitlement to service connection for diverticulosis is denied. Entitlement to service connection for a skin condition, to include cystic acne, peeling lips, actinic keratosis is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s GERD is not due to his active duty service, including his herbicide agent exposure nor caused by or aggravated his service-connected PTSD. 2. The preponderance of the evidence shows that the Veteran’s diverticulosis is not due to his active duty service, including his herbicide agent exposure nor caused by or aggravated his service-connected PTSD. 3. The preponderance of the evidence shows that the Veteran’s skin condition is not due to his active duty service, including his herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran’s GERD have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2020). 2. The criteria for service connection for the Veteran’s diverticulosis have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2020). 3. The criteria for service connection the Veteran’s skin condition have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from December 1965 to December 1967, including service in the Republic of Vietnam. In May 2016, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive VA examinations for his GERD, diverticulosis, and skin condition. The Veteran received new VA examinations in July 2017. In April 2019, the Board found that the rationales provided by the VA examiner for the negative nexus opinions were in adequate. Consequently, the Veteran’s service connection claims were remanded again in April 2019 for new VA opinions. The Veteran received new examinations in March 2020. The examiner provided adequate rationales for his opinions such that the Board could decide the Veteran’s claims. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. 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). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The nexus requirement may alternatively be satisfied if the Veteran was exposed to an herbicide agent in service and has a disease that is presumed to be associated with herbicide exposure. 38 U.S.C. § 1116(a)(2) (2018); 38 C.F.R. § 3.309(e) (2020). A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The Board concludes the evidence shows the Veteran served on the ground in Vietnam during the applicable time period. Therefore, the Board finds that the Veteran is presumed to have been exposed to herbicide agents. 1. GERD and Diverticulosis While Board concedes that the Veteran had been exposed to herbicide agents, GERD and diverticulosis are not listed among the diseases and conditions presumptively associated with exposure to herbicide agents as set forth in 38 C.F.R. § 3.309(e). Nevertheless, service connection on a direct basis must also be considered. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, the Board will consider secondary service connection. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2020). Secondary service connection may also 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(a) (2020); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran received a VA examination in May 2017 for his conditions. The examiner noted the Veteran reported the onset of his GERD around 20 years ago and reported epigastric distress for many years. Likewise, the onset of his diverticulosis was in 2011. The Veteran had abdominal pain and needed bladder stones removed about 8 to 9 years prior. The examiner concluded that neither of these conditions were related to his herbicide agent exposure because the onset of these disabilities occurred many years after separation from service. Likewise, the examiner also opined that his GERD and diverticulosis were not related to his service connected PTSD because they started around 20 years ago. In March 2020, the Veteran received another VA examination. The examiner noted first that the record showed that the Veteran had diverticulosis not diverticulitis. He noted that diverticulosis is of the colon and a common anatomical abnormality in older individuals. There is no relationship between this condition and the Veteran’s military service, including his herbicide agent exposure. Additionally, the examiner noted that there was no conceivable mechanism whereby the Veteran’s service-connected psychiatric condition could cause his diverticulitis or aggravate it beyond its natural progression. Similarly, the examiner noted the Veteran reported experiencing acid reflux in the 1980s, with his first documented case in the 2000s. The examiner likewise concluded that it was less likely than not that the Veteran’s GERD was caused by his military service because GERD is not related to herbicide agent exposure and the first documented instance occurred many years after service. He also opined that GERD was not related to his service-connected PTSD. The examiner noted GERD is an anatomical and functional abnormality of the gastroesophageal sphincter and is not caused by nor aggravated beyond its natural progression by PTSD. The Board finds that service connection for the Veteran’s GERD and diverticulosis disability is not warranted. While the lay statements connecting the Veteran’s GERD and diverticulosis to his herbicide agent exposure and service-connected PTSD are considered, the Board affords the statements low probative value. Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. However, determining the etiology of these disabilities fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. Determining the etiology of the Veteran’s GERD and diverticulosis requires medical inquiry into biological processes that are not readily observable, and the ability to determine the impact of an herbicide agent on the body. The Veteran in this case is not shown to have the experience, skills, or medical training needed to determine the etiology of his disabilities. Conversely, the Board finds the March 2020 VA opinion provides competent, credible evidence against the Veteran’s claims. Accordingly, the March 2020 VA opinion is afforded high probative value. Therefore, as the preponderance of the probative evidence is against the Veteran’s claims, the Board finds service connection for GERD and diverticulosis is not warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Skin Condition The Veteran received a VA examination for his skin condition in May 2017. The examiner acknowledged that he had multiple minor scattered lesions but opined that they were not due to his herbicide agent exposure. The examiner acknowledged that there was evidence in the medical literature showing a possible relationship between some skin conditions and herbicide agents. However, for the Veteran’s specific skin condition there was no relationship. In the March 2020 VA examination, the examiner discussed each of the Veteran’s skin issues and its possible relationship to herbicide agent exposure. The Veteran’s herpes zoster was diagnosed in 2012, and he fully recovered with no residual scarring. The examiner noted that herpes zoster is a viral condition with no relation to herbicide agent exposure. The Veteran also suffered from actinic keratoses for the past 5 to 10 years on his ears, nose, arms, and back. Actinic keratoses are precancerous lesions resulting from sun exposure, not herbicide agents. He was also diagnosed with allergic contact dermatitis in July 2019, but currently had no current lesions that would fit that diagnosis at the examination. Furthermore, the examiner noted that his diagnoses was made more than 50 years after service and there is no relationship to herbicide agent. In September 2005, he was diagnosed with folliculitis appearing as pustules on his upper back and neck. The examiner noted that folliculitis is an infection of the hair follicle and not related to herbicide agent exposure. In considering the lay and medical evidence the Board finds that service connection for a skin condition is not warranted. The Board considers the Veteran’s statements concerning his skin issues right after service including his issues with acne and peeling lips. The Board finds these statements credible, but like his opinions on his GERD and diverticulosis, the evidence of record fails to show that the Veteran is competent to make an etiological opinion. Conversely, the March 2020 examiner explained the etiology for each of the Veteran’s skin conditions and provided a credible, competent opinion as to why they were not related to his in-service herbicide agent exposure. Therefore, as the preponderance of the probative evidence is against the Veteran’s claim, service connection for a skin condition is denied. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.