Citation Nr: 21015897 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-30 582 DATE: March 18, 2021 ORDER Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for erectile dysfunction, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for bilateral foot fungus, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for urticaria (claimed as chloracne), to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The evidence does not show that the Veteran’s hypertension had its onset during, or is otherwise etiologically related to, his active service, to include herbicide exposure. 2. The evidence does not show that the Veteran’s erectile dysfunction had its onset during, or is otherwise etiologically related to, his active service, to include herbicide exposure. 3. The evidence does not show that the Veteran’s bilateral foot fungus had its onset during, or is otherwise etiologically related to, his active service, to include herbicide exposure. 4. The evidence does not show that the Veteran’s urticaria had its onset during, or is otherwise etiologically related to, his active service, to include herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 2. The criteria for service connection for erectile dysfunction, to include as due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for bilateral foot fungus, to include as due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for urticaria, to include as due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to November 1967 and active duty for training from March 1970 to April 1970. The Veteran also served in the National Guard from 1967 to 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this matter in December 2016, September 2017, and April 2019. The Board finds there has been substantial compliance with its April 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Service Connection Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (2019). To establish service connection for a disability, the Veteran must show: (1) the existence of 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 disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for a disability shown after service when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for certain diseases may also be established on a presumptive basis by showing that the disease manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Certain diseases may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such exposure during the period of service. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e) (2019). Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6)(iii). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307 (a)(6)(ii). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. Initially, the Board finds that the Veteran did have service in Vietnam during the requisite period, and, as such, is presumed to have been exposed to herbicide agents. The Veteran is not precluded from presenting evidence that a claimed disability is due to or the result of herbicide exposure to alternatively show entitlement to service connection on a nonpresumptive direct-incurrence basis. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). The Veteran has contended that a relationship exists between his hypertension, erectile dysfunction, bilateral foot fungus, and urticaria, and his herbicide exposure. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, entitlement to service connection for erectile dysfunction, to include as due to exposure to herbicide agents, entitlement to service connection for bilateral foot fungus, to include as due to exposure to herbicide agents, and entitlement to service connection for urticaria (claimed as chloracne), to include as due to exposure to herbicide agents As stated above, the Veteran asserts that his hypertension, erectile dysfunction, bilateral foot fungus, and urticaria are due to exposure to herbicide agents in service. Service treatment records are silent for complaints, treatment, or diagnosis of hypertension, erectile dysfunction, bilateral foot fungus, and urticaria. July and December 2006 private treatment records show diagnoses of hypertension and erectile dysfunction. In a January 2010 VA treatment record, the Veteran said he was told that his foot fungus was due to wearing boots while in the service. In a February 2010 VA treatment record, a diagnosis of onychomycosis on finger and toe was noted. The VA physician noted chloracne or other acneform disease consistent with chloracne. In an April 2010 VA treatment record, examination and laboratory tests reportedly showed probable chloracne. In a June 2010 private treatment record, the Veteran was prescribed Clotrimazole topical cream for his fungal infection. In a January 2018 hypertension VA examination, the Veteran said that he had hypertension since he left Vietnam in 1967. He said he took “salt pills” 2 to 3 times a day for about 11 months, and that the next year he got a physical and it was noted his blood pressure was up; the Veteran was placed on blood pressure medication at that time and had been on medication ever since. In a separate January 2018 VA opinion, the examiner opined that the Veteran’s hypertension was less likely than not due to service. The examiner reasoned that the service treatment records did not support “that a diagnosis of HTN. bp noted 130/80. in strs, 115/85. HTN is not a presumed condition related to herbicide exposure.” In a January 2018 male reproductive system conditions VA examination, erectile dysfunction was noted and date of diagnosis was unsure. The Veteran said that he had erectile dysfunction since the early 1980s. In a separate January 2018 VA opinion, the examiner opined that the Veteran’s erectile dysfunction was less likely than not due to service. The examiner reasoned that medical literature did not demonstrate that herbicide exposure caused erectile dysfunction. Service treatment records did not support a diagnosis of erectile dysfunction. In a January 2018 skin diseases VA examination, the examiner noted diagnoses of tinea pedis and facial cyst. The Veteran said that he had cystic like lesion near his left cheek and left chin. He said he never had acne. He stated that he can squeeze stuff out of it and saw a civilian dermatologist, which did not give him any medication for treatment. The Veteran also said that he put Clotrimazole cream on his feet and had foot fungus since he came back from service and had been treated. In a separate January 2018 VA opinion, the examiner opined that the Veteran’s foot fungus and facial cysts were less likely than not due to service. The examiner reasoned that it would be merely speculative to state that the Veteran had chloracne. He did have some cystic changes but he did not have the typical blackheads and oiliness of skin, which was often associate with chloracne. The examiner said that tinea pedis was not a presumed condition with Agent Orange. In a February 2020 VA opinion, the examiner opined that the Veteran’s hypertension, skin condition, and erectile dysfunction were less likely than not related to service. The examiner reasoned that she was unable to identify any objective evidence in the Veteran’s service treatment records documenting continuous medical evaluation/management/treatment for hypertension, skin condition (tinea pedis) and erectile dysfunction. The Veteran’s hypertension, skin condition (tinea pedis), and erectile dysfunction were not related to his presumptive exposure to herbicides while on active duty during the Vietnam War. The examiner stated that at this point, there was no scientific objective evidence in medical literature to confirm that hypertension was related to exposure to herbicides. In a November 2020 VA opinion, the examiner opined that it was less likely as not that the Veteran’s hypertension was related to and/or aggravated by service. The examiner was unable to identify any objective evidence in the Veteran’s service treatment records documenting continuous medical evaluation/management/treatment for hypertension and/or skin condition (tinea pedis). The Veteran’s hypertension was not related to his presumptive exposure to herbicides while on active duty during the Vietnam War. The examiner said that at this point there were no sufficient scientific objective evidence in medical literature to confirm that hypertension and/or tina pedis were related to exposure to herbicides. Therefore, the VA did not consider hypertension and/or tinea pedis as presumptive conditions related to history of Agent Orange exposure. In a December 2020 VA opinion, the examiner opined that the Veteran’s hypertension was less likely as not related to and/or aggravated by service. The examiner was unable to identify any objective evidence in the Veteran’s service treatment records documenting continuous medical evaluation/management/treatment for hypertension and/or skin condition (tinea pedis, urticaria and/or cysts of the face). The Veteran’s hypertension was less likely was not related to his presumptive exposure to herbicides while on active duty during the Vietnam War. At this point, there was no sufficient scientific objective evidence in medical literature to confirm that hypertension and/or tinea pedis and/or urticaria were related to exposure to herbicides; therefore, at this point the VA did not consider hypertension and/or tinea pedis and/or urticaria as presumptive conditions related to history of Agent Orange exposure. The examiner said that the Veteran said he was diagnosed with hypertension in the 1970s, and he separated from service in 1967. In regards to the study by NAS, which indicated that hypertension might be linked to exposure to herbicide agents, the VA had reviewed the report and had found that the evidence in the report were insufficient to establish causativeness between past herbicide exposure and hypertension. With regards to the request to establish etiology of “cysts of the face,” during the exam there was no evidence of any “cysts of the face;” therefore, the examiner could not establish the etiology without resort of mere speculation. The examiner noted that the Veteran did not claim to the examiner service connection for urticaria. There was no evidence of urticaria during the exam. Overall post-service treatment records throughout the period of appeal do not provide any medical opinion regarding a nexus between the Veteran’s hypertension, erectile dysfunction, bilateral foot fungus, and urticaria, and service, to include herbicide exposure. Although the Board finds the January 2018 VA opinions to be inadequate, the Board finds adequate the February 2020, November 2020, and December 2020 VA opinions adequate. The Board affords great probative weight to the consistent opinions of these VA examiners that the Veteran’s hypertension, erectile dysfunction, bilateral foot fungus, and urticaria is not due to his herbicide exposure. Overall, the examiners reviewed the Veteran’s complete record, and applied their medical expertise in forming their opinions. The Board acknowledges that the Veteran is competent to report his symptoms, but he has not been found to possess the medical expertise to diagnose hypertension, erectile dysfunction, bilateral foot fungus, and urticaria, or attribute these conditions to a specific cause. Service treatment records are silent for complaints, diagnosis, or treatment of hypertension, erectile dysfunction, bilateral foot fungus, and urticaria. The evidence further shows that the Veteran’s conditions were diagnosed many years following separation from service, and there is no competent and probative evidence in the file that shows the Veteran’s conditions are linked to herbicide exposure. Thus, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against awarding service connection for hypertension, erectile dysfunction, bilateral foot fungus, and urticaria, on a presumptive or direct basis. The Veteran is certainly competent to report the onset of symptoms related to his hypertension, erectile dysfunction, bilateral foot fungus, and urticaria, and the circumstances surrounding such. However, although the Board recognizes the Veteran is sincere in his belief that his current hypertension, erectile dysfunction, bilateral foot fungus, and urticaria, were due to his herbicide exposure, he is not otherwise competent to state whether his disabilities is caused by herbicide exposure. See Jandreau, 492 F.3d at 1377. There is no competent medical evidence linking his currently diagnosed hypertension, erectile dysfunction, bilateral foot fungus, and urticaria to his herbicide exposure. Given the above, the Board finds that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s hypertension, erectile dysfunction, bilateral foot fungus, and urticaria had its onset during, or is otherwise etiologically related to, his active service, to include herbicide exposure. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.