Citation Nr: 21015998 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-32 337A DATE: March 19, 2021 ORDER Entitlement to service connection for asthma and respiratory problems is denied. Entitlement to service connection for removal of growth from scrotum is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents in service. 2. The Veteran’s asthma and scrotum growth were not shown in service and have not been otherwise etiologically related to active duty service, including as a result of exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for asthma and respiratory problems have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 309(e). 2. The criteria for entitlement to service connection for removal of growth from scrotum have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to February 1972, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded the issues on appeal for further development which has been completed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including malignant tumors, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Benign tumors and asthma are not considered chronic diseases. The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have a disease listed in 38 C.F.R. § 3.309 (e), and who served on active duty in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a)(6)(iii). Neither asthma nor benign scrotal fiber pseudotumor are listed in 38 C.F.R. § 3.309 (e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). 1. Entitlement to service connection for asthma and respiratory problems 2. Entitlement to service connection for removal of growth from scrotum The Veteran contends that his asthma and respiratory problems and residuals of removal of a growth from scrotum are the result of in-service herbicide exposure, while serving in the Republic of Vietnam. The Veteran is presumed to have been exposed to herbicide agents during service. However, as noted above, neither asthma nor benign scrotal fiber pseudotumor are included in the enumerated diseases in 38 C.F.R. § 3.309 (e). These conditions are also not considered chronic diseases for which service connection may be presumed pursuant to 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The fact that the Veteran cannot establish entitlement to service connection for skin cancer on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question for the Board then, is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has not presented persuasive evidence that these conditions are related to his military service. The service treatment records do not reflect diagnoses of these conditions, or complaints of relevant symptoms. The post-service medical records show treatment for these conditions, but do not include nexus opinions associating asthma or the benign scrotum growth to his period of service. In testimony provided at RO hearings in January 2017 and February 2018, the Veteran testified that his asthma and scrotum growth onset after service and it was his belief these conditions were related to Agent Orange exposure. At the first hearing, the Veteran indicated he was diagnosed with asthma in 1973 and that he noticed the scrotum growth beginning in either 1981 or 1982, and it was removed in the mid to late 1990’s. At the second hearing, he asserted that the asthma symptoms began about two years after he was discharged from service and reasserted the possibility that the scrotum growth may be related to Agent Orange. Pursuant to the Board’s July 2019 remand, the Veteran was afforded VA examinations in February 2020 to assess the nature and etiology of his disabilities. The examiner provided diagnoses of asthma and paratesticular fibrous pseudotumor. The examiner indicated the latter is a relatively rare and benign disease. The examiner, who conducted an in-person examination and reviewed the medical records in the claims file, opined that neither condition is at least as likely as not related to service, including exposure to herbicide agents therein. The examiner indicated that she had reviewed current literature regarding potential relationships between the claimed disabilities and herbicide agent exposure, including the most recent National Academy of Sciences Institute of Medicine’s study regarding Veterans and Agent Orange in reaching her opinion. These opinions are probative as they were provided by a medical professional who conducted an in-person examination, interviewed the Veteran, and reviewed the evidence in the claims file. The opinions were supported by rationale that is reasonably persuasive. The Board notes that the examiner included a statement (that there was no diagnosis for the benign tumor) at the end of the rationale for her nexus opinion, which contradicts her given diagnosis, but finds that this was likely a mistake and included in error given the entirety of the examination report. The Veteran, as a lay person, is competent to report symptoms he can personally observe and the onset of such. See 38 C.F.R. § 3.159 (a)(2); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). To the extent the Veteran asserts his current disabilities are related to active service, and herbicide agent exposure therein, he has not been shown to have specialized training sufficient to render an opinion requiring medical expertise, such as the etiology of these disabilities. Accordingly, his statements are not competent evidence to establish service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has proffered no other possible causal relationship between his current disabilities and his military service other than the exposure to herbicide agents therein. There is no medical opinion of record that provides a causal nexus between the Veteran’s current asthma or scrotum growth with active duty service. The VA nexus opinions, which are unfavorable on the question of service etiology, are probative. As the evidence does not establish that the Veteran’s asthma or scrotum growth are attributable to military service, the preponderance of the evidence is against the claim, and the benefit of the doubt does not apply. 38 U.S.C. § 5107 (b). Service connection for asthma or scrotum growth is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, 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.