Citation Nr: 21020722 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-21 935 DATE: April 8, 2021 ORDER Service connection for a skin disorder, to include actinic keratosis (skin condition), and to include as secondary to exposure to herbicide agents, asbestos, and water contamination at Camp Lejeune, is denied. Service connection for a right shoulder disability is denied. Service connection for a left shoulder disability is denied. Service connection for an eye disability, to include vision loss (eye disability) is denied. REMANDED Service connection for a right foot disability, to include right foot pain, is remanded. Service connection for a left foot neurologic disability, to include mild left lower extremity paresthesia and/or dysesthesias, and mild numbness of the left lower extremity (left foot paralysis), is remanded. The claim of an increased, compensable rating for bilateral hearing loss, including on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The probative evidence does not show that the Veteran’s current skin condition is the result of an in-service exposure to herbicides, including Agent Orange, asbestos, water contamination at Camp Lejeune, and/or ultraviolet from the sun; and/or that it is causally related to an illness, injury, or event in active service. 2. The probative evidence does not show that the Veteran’s right shoulder disability is causally related to his active service. 3. The probative evidence does not show that the Veteran’s left shoulder disability is causally related to his active service. 4. The probative evidence does not show that the Veteran’s eye disability is causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for an eye disability, to include vision loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to November 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2015 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Skin Disability The Veteran asserts entitlement to service connection for actinic keratosis (skin condition) due to (1) his exposure to the sun during his active service; (2) his exposure to Agent Orange while he served in Guam in July 1974, and during his service on board the U.S.S. Constellation, from July 1974 to June 1976, while ported at Subic Bay, Philippines; (3) his exposure to asbestosis while he served on board the U.S.S. Constellation; and/or (4) his exposure to contaminated water at Camp Lejeune. See e.g. October 2015 NOD; see also November 2015 Statement in Support of Claim; see too August 2016 Correspondence. With respect to the Veteran’s claim regarding exposure to Agent Orange, the Board notes that generally, a veteran is presumed exposed to herbicide agents, including Agent Orange, if he or she had active military, naval, or air service in the Republic of Vietnam from January 9, 1962 to May 7, 1975, “unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). Service personnel records indicate that the Veteran’s foreign service, while on active duty, include and may not be limited to Moscow, Russia; Oslo, Norway; Stockholm, Sweden and Frankfurt, Germany. The Veteran also served on active duty on the U.S.S. Constellation (CV 64). However, the evidence does not show that the Veteran served in the Republic of Vietnam during his active service. Nonetheless, although herbicides were tested and stored outside Vietnam, herbicide agents, to include Agent Orange, are not known to have been tested or stored in Russia, Norway, Sweden, Germany, or at any of the duty stations where the Veteran served while on board the U.S.S. Constellation (CV 64), including Guam and the Naval Base at Subic Bay, Philippines, as alleged by the Veteran as well. See https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/outside-vietnam.asp (VA Public Health’s website providing information from the Department of Defense about the locations, outside of Vietnam, where the testing and storage occurred, to include Cambodia, Canada, India, Johnston Atoll, Korea, Laos, and Thailand). Additionally, the U.S.S. Constellation (CV 64) is not on VA’s current enumerated list of “Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicides Agent. See https://www.benefits.va.gov/compensation/docs/shiplist.docx. Therefore, herbicide agent exposure, including Agent Orange, is not found, and consideration of presumptive service connection, due to said exposure, is not applicable for this or any of the Veteran’s claimed disabilities. With respect to the Veteran’s claim that his skin disability is a result of his exposure to asbestos during his active service, exposure to such is typically associated with lung disabilities. There is no competent or probative evidence showing any relationship between any possible exposure to asbestos in service and the subsequent onset of a skin disability. As noted above, the Veteran also asserted that his skin condition is the result of his exposure to contaminated water at Camp Lejeune in 1976. See e.g. October 2015 NOD. Although the Veteran was exposed to contaminated water at Camp Lejeune, however, the Veteran’s skin condition, including actinic keratosis, is not one of the disabilities listed in the limited enumerated list of diseases that are associated with exposure to contaminants in the water supply at Camp Lejeune. See 38 C.F.R. § 3.309(f). In summary, and for the reasons noted above, service connection for a skin condition, to include actinic keratosis, is not established on a presumptive basis, as the evidence does not indicate that the Veteran’s skin condition is the result of an exposure to Agent Orange, asbestosis, and/or water contamination at Camp Lejeune. Notwithstanding, service connection may be established, on a direct basis, when the evidence shows that the disease was incurred during or aggravated by service, without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043 – 44 (Fed. Cir. 1994). As noted above, the Veteran also asserts that his actinic keratosis is the result of exposure to ultraviolet light and that he sustained blistering sunburns. See e.g. October 2015 NOD. Military personnel records do not show or confirm the specific amount of time the Veteran spent in the sun during his active service. Service treatment records (STRs) reflect that the Veteran had an acne condition during service. See December 1974 Treatment Record, STRs. Additionally, on one occasion during service, the Veteran had an ecchymotic patch/small “bump” in his left thigh, as well as a folliculitis cyst. See November 1976 Treatment Record, STRs. However, STRs do not show that these skin conditions were recurring throughout the Veteran’s service, and thus, apparently resolved. Additionally, despite these documented skin conditions, STRs do not reflect any complaints and/or treatment for his alleged blistering sunburns. At his November 1978 report of medical history for separation from service, the Veteran did not note or report a history of any skin conditions. Rather, the Veteran particularly noted that aside from his right big toe fracture and toe removal, hay fever, sleep difficulty, excessive worrying, gonorrhea, and headaches, he “denies [having] other illnesses” and that “he denies [having] other surgical procedures.” Nonetheless, in support of his claim, the Veteran submitted medical literature about actinic keratosis, from what appears to be from the website, Wikipedia, although supported by numerous medical references and citations. However, this medical literature merely supports the Veteran’s assertions that actinic keratosis is the result of exposure to sun. Thus, the Board finds that this medical literature is not probative evidence of the degree, if any, to which the Veteran was actually exposed to the sun during his active military service or pertains to the facts of this case. After a review of all probative evidence, including and not limited to all of the Veteran’s lay statements, STRs, post-service medical records, and the Veteran’s medical literature on actinic keratosis, the Board finds that the Veteran’s assertion that his skin condition is a result of exposure to ultraviolet sunlight during service are not particularly credible. Based on the medical evidence, the Veteran was not diagnosed with actinic keratosis until 2013, and specifically, approximately thirty-five years after his separation from service. As a matter of fact, a treatment note reflects that the Veteran’s skin condition was in multiple sites, the duration was 30 years from the time of this consultation (which was well after his separation from service), and with respect to the history of the Veteran’s present illness, he had extensive exposure to the sun, riding his bicycle. See April 2016 Dermatology Consult Note. The Board acknowledges that VA has not afforded the Veteran a comprehensive medical examination for skin conditions, and specifically actinic keratosis. However, as discussed above, the evidence does not demonstrate that the Veteran was exposed to herbicide agents and/or asbestosis during active service; or that the Veteran’s exposure to contaminated water at Camp Lejeune resulted in a disability that is on the limited enumerated list of presumptive diseases under 38 C.F.R. § 3.309. Additionally, given the fact that there is no probative evidence that the Veteran’s current skin condition occurred in service, or that there is no indication that the Veteran’s current diagnosis of actinic keratosis may be associated with his service, or another service-connected disability, the Board finds that VA’s duty to obtain a medical examination is not required. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding that an examination and medical nexus opinion is required for a service connection claim when there is evidence of current disability or persistent or recurrent symptoms of a disability, evidence establishing in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, and an indication that the current disability may be related to an in-service event, injury, or disease; but insufficient evidence to decide the claim). Therefore, the preponderance of the evidence is against this claim and service connection for a skin condition, to include actinic keratosis, and to include as secondary to exposure to herbicide agents, including Agent orange, exposure to asbestos, and/or exposure to water contamination at Camp Lejeune, must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Right & Left Shoulder Disabilities (Bilateral Shoulder Disability) & Eye Disability The Veteran asserts that his bilateral shoulder and eye disabilities are causally related to his active service. Post-service treatment records reflect current diagnoses of bilateral shoulder and eye disabilities, including osteoarthritis of the right shoulder; osteoarthritis of the left shoulder; and bilateral eye disabilities of cataracts, refractive error/presbyopia, and dry eye syndrome. See e.g. March 2019 Eye Note; see also January 2020 Primary Care Note; see too, May 2020 Addendum Note. However, STRs do not reflect any conditions, treatment, complaints, and/or injury-related events that are related to the Veteran’s current bilateral shoulder and eye disabilities. As a matter of fact, when he disclosed his medical history at his examination, upon separation from service, no shoulder and/or eye conditions were noted, and particularly, the Veteran noted that aside from his right big toe fracture and toe removal, hay fever, sleep difficulty, excessive worrying, gonorrhea, and headaches, he “denies [having] other illnesses” and that “he denies [having] other surgical procedures.” See November 1978 Report of Medical History for Separation from Service. Nonetheless, for his bilateral shoulder disability, the Veteran asserted that he did well over “40,000 hand forward shoulder with apart pullups, as well as over 50,000 pushups”, and that his “shoulders became arthritic and at discharge and upon [his] exit physical exam, it was noted and [he] was told [he has] chronic pain and decreased motion due to the constant stress of the pullups and pushups, and the micro cracking and arthritis that was present.” See October 2015 NOD. Additionally, the Veteran asserted that his bilateral shoulder disability “is a result of a conduit of karate practice” during service”, and he maintained that the American Embassy and medical records support this. See November 2015 Statement in Support of Claim; see also August 2016 Correspondence. In a December 2016, the Veteran submitted evidence to support his claim for bilateral shoulder disability. Specifically, he noted that “[military] documentation of [him] him striving to be the best will show [he] spent countless hours working on [his] personal appearance of physical fitness” and that “[during] this time, [he] did thousands of push-ups and pull ups. [He] simply wore [his] shoulders out” and that now, he “must climb a ladder to do any function that would normally be above his head.” While the Veteran submitted evidence, including a fitness award certificate, as well as a record of the number of pull ups and sit ups he accomplished in service, none of the evidence he submitted shows that he sustained an in-service shoulder condition. Rather, in addition to his separation examination, post-treatment records do not show that the Veteran was diagnosed with a bilateral shoulder condition, and particularly, bilateral shoulder arthritis, to a degree of at least 10 percent, within one year of his separation from active service, in November 1978. Thus, in this regard, the Board finds that service connection for bilateral shoulder osteoarthritis, on a presumptive basis, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For his eye disability, the Veteran asserted that his vision is the direct cause of two events during his time in the Marine Corps. He stated that during his capacity as a rifleman in service, his eyes were subject to constant powder burn, which always made his eyes blurred and irritated; and that on independent occasion, in Stockholm, Germany, he got cleaning chemicals into his eyes; and he had to have his eye lids operated on by a Swedish physician. See October 2015 NOD; see also November 2015 Statement in Support of Claim. While STRs confirm that he sought treatment for other unrelated conditions and disabilities during active service, in Stockholm, Germany, they do not show any evidence of eye surgery, as alleged by the Veteran. For his eye and shoulder disabilities, the Veteran has not submitted any other evidence, such as, for example, private treatment records, and/or lay testimonies from other witnesses, including fellow service members, about any service-related injuries and/or events that may be related to the bilateral shoulder and eye disabilities. The Board also acknowledges that the Veteran has not been afforded a VA examination for his bilateral shoulder and eye disabilities. However, given the fact that there is no probative evidence that these conditions occurred in service, nor that there is any indication that the Veteran’s current bilateral shoulder and eye disabilities may be associated with his service, or another service-connected disability, the Board finds that VA’s duty to obtain a medical examination is not triggered. See McLendon, 20 Vet. App. at 83 (holding that an examination and medical nexus opinion is required for a service connection claim when there is evidence of current disability or persistent or recurrent symptoms of a disability, evidence establishing in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations, and an indication that the current disability may be related to an in-service event, injury, or disease; but insufficient evidence to decide the claim). Therefore, the preponderance of the evidence is against these claims and service connection for the right shoulder, left shoulder, and eye disabilities is denied. Gilbert, 1 Vet. App. at 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining issues on appeal. 1. Right Foot Disability The Veteran asserts that his right foot disability is the direct cause of an in-service injury in the Marine Corps. See e.g. October 2015 NOD. STRs treatment reflect evidence of an in-service right foot injury, including, for example, an injury to his right foot, big toe, which the Veteran injured during bootcamp. See July 1975 Treatment Record, STRs. On separation from service, a November 1978 report of medical history, as well as the November 1978 report of medical examination both indicated that the Veteran’s big toe, which had undergone surgery to remove an ingrown toenail, was not completely healed at the time of his separation examination. Notwithstanding, the Veteran has not been afforded a comprehensive VA examination for his right foot. Therefore, a remand is required for a VA examination and to opinion on the etiology of the Veteran’s right foot disability. 2. Left Foot Paralysis The claim for the left foot neurologic disability was remanded in March 2020 for a VA examination and opinion on the Veteran’s left foot paralysis. In the remand decision, the Board noted, in pertinent part, that the Veteran has mild left lower extremity paresthesias and/or dysesthesias, and mild numbness in his left lower extremity. In August 2020, the Veteran was afforded a VA examination for foot conditions. After this examination, a VA examiner rendered a negative opinion on a foot condition, and as the rationale for the opinion, noted in pertinent part, that there “is no evidence that the left foot condition is due to the cervical spine spondylosis and IVDS.” However, this opinion is incomplete because the VA examiner rendered an opinion addressing a potential relationship between a musculoskeletal disability (left foot condition) and the service-connected cervical spine disability, rather than a neurologic disorder (left foot paralysis). 3. Bilateral Hearing Loss The Veteran asserts entitlement to an increased, compensable rating for bilateral hearing loss. In support of his claim, he has submitted a voluminous amount of buddy statements about the manifestations of his hearing loss. However, medical evidence of the current severity of his hearing loss is unavailable, as the last time he was evaluated for bilateral hearing loss was in a February 2017 VA examination, and medical treatment records about his hearing disability are not up-to-date. Thus, as it been four years since the last time the Veteran was afforded a VA examination on the severity of his hearing loss, and medical treatment records about his hearing loss have not been updated in approximately four years, a remand is required for the AOJ to obtain any outstanding treatment records, if any, and to schedule the Veteran for a contemporaneous VA examination to address the current severity of his bilateral hearing loss. The matters are REMANDED for the following action: 1. Contact the Veteran and obtain an authorization and release, and obtain all outstanding, updated private and/or VA treatment records, from 2016 to the current period, and associate them with the claims file. 2. Schedule the Veteran for a new VA examination with a physician (VA examiner) to obtain an opinion addressing the etiology of his right foot disability. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right foot disability was incurred in service, is the result of an in-service injury, to include his right big toe injury, illness, disease, or event; and/or is otherwise related the Veteran’s active service. b. In rendering an opinion, consider all lay statements from the Veteran and/or any other witnesses, about onset, symptoms, and continuity of symptoms. c. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 3. Schedule the Veteran for a new VA neurologic examination to obtain medical evidence addressing the etiology of his left foot paralysis (neurologic disorder). The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left foot paralysis is caused by his service-connected cervical spine disability. b. opine whether it is at least as likely as not the Veteran’s left foot paralysis is aggravated by his cervical spine disability. “Aggravation” means an increase in severity of the disorder beyond any medically established baseline. (Continued on the next page)   c. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 4. After updating the Veterans claims file with the most recent private and/or VA treatment records, schedule the Veteran for a new VA examination obtain evidence addressing the current severity of his bilateral hearing loss. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.