Citation Nr: 21022440 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-35 876 DATE: April 15, 2021 ORDER Entitlement to service connection for hypertension (high blood pressure), claimed as secondary to a skin disability and a psychiatric disability, is denied. REMANDED Entitlement to service connection for disability of the skin, to include recurrent malignant melanoma, status-post excision of right preauricular node and modified neck dissection; basal cell carcinoma; squamous cell carcinoma; and seborrheic keratosis, is remanded. Entitlement to service connection for an eye disability, to include a nerve disorder affecting the right eye, is remanded. Entitlement to service connection for a psychiatric disability of any kind, to include an acquired psychiatric disorder, posttraumatic stress disorder (PTSD), depression, and anxiety, including as secondary to a claimed skin disability, is remanded. FINDING OF FACT Hypertension is not shown by the evidence of record to have manifested within one year of discharge from service, nor is hypertension shown by the most probative evidence of record to be etiologically related to a disease, injury, or event in service, or to the claimed skin and/or psychiatric disabilities. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, may not be presumed to have been caused by active service, and was not caused or aggravated by a service-connected disability. See 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to December 1968. The Board has thoroughly reviewed all evidence in the claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the Veteran. The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. Neither the Veteran nor the Veteran’s representative has raised any issues not addressed herein, to include regarding the duty to notify or the duty to assist, nor have any other issues been reasonably raised by the record. The Board notes that the Veteran testified at a hearing before a Veterans law Judge (VLJ) in October 2018. On January 26, 2021, the Veteran was issued a letter informing him that this VLJ was no longer available to decide his case, as she has retired from the Board. He was given the opportunity to request another hearing. The Veteran was informed that he had 30 days from the date of this letter to respond or the Board would assume that he did not want another hearing and would proceed accordingly. As no response was received pertaining to this letter, the Board will proceed to adjudicate the claims as done below. The Board notes all issues on appeal were remanded by the Board for further development in January 2020. These issues have now been returned to the Board for consideration. Additionally, the Board notes that the issue of entitlement to service connection for bilateral hearing loss was remanded by the Board for further development in the January 2020 determination. In a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral hearing loss. This decision was a complete grant of benefits with respect to the issue of service connection pertaining to bilateral hearing loss. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As such, the issue is no longer on appeal before the Board. In the January 2020 determination, the Board referred the issue of entitlement to a right eye disability, to include a nerve disorder affecting the eye, pursuant to the provisions of 38 U.S.C. § 1151, to the AOJ for consideration. As the issue has not been adjudicated by AOJ, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. See 38 C.F.R. § 19.9 (b). In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. In light of the holding in Clemons, the Board has recharacterized the Veteran’s psychiatric disorder claims as a single claim for entitlement to service connection for a psychiatric disability of any kind, to include an acquired psychiatric disorder, PTSD, depression, and anxiety, including as secondary to a claimed skin disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303 (a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to establish entitlement to service connection on a 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). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303 (b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As hypertension is listed as a “chronic disease” under 38 C.F.R. § 3.309 (a), the provisions of 38 C.F.R. § 3.303 (b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the issue of hypertension. Entitlement to service connection for hypertension (high blood pressure), claimed as secondary to a skin disability and a psychiatric disability, is denied. The Veteran contends that he developed high blood pressure as secondary to his claimed skin disability and claimed psychiatric disability. A review of his service treatment records does not reflect any evidence of high blood pressure or related complaints. Review of the record confirms that the Veteran has been diagnosed with hypertension. In an August 2020 VA opinion, the examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was no diagnosis of hypertension while serving. In a separate August 2020 VA opinion, the examiner determined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s skin or psychiatric conditions. The examiner noted that the file does not establish a link between the Veteran’s hypertension and any psychiatric condition, medications, or skin disability at this time. There are no findings in which a specialist or health care provider linked hypertension to his mental condition. There are no findings in which the health care providers noted that medication may have been causing the Veteran’s blood pressure to be elevated. There are no documented reports in which the Veteran’s skin cancer caused his blood pressure to be elevated. Although it is noted that the Veteran was under stress and he had an elevated blood pressure, there were times when his blood pressure was elevated, and it was not noted that he was under any stress. Regarding granting service connection on a direct basis, the Board notes that the Veteran’s service treatment records are negative for high blood pressure readings. Moreover, there is no medical or lay evidence linking a current diagnosis of high blood pressure or hypertension to the Veteran’s service. On his March 2013 claim, the Veteran specifically asserted that his high blood pressure began in 2002, which is approximately 34 years after his discharge from service. The August 2020 VA examiner also did not link the Veteran’s hypertension directly to his service. There are no medical opinions of record to the contrary, and the Veteran is not competent to link a current diagnosis of hypertension to his service, as he has no medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that service connection for hypertension cannot be granted on a direct basis. Regarding granting service connection on a secondary basis, the Board notes that the Veteran is not currently service connected for a psychiatric disability or a skin disability of any kind. Although those claims remain pending, this claim can be decided at this time because there is no medical evidence of record linking the Veteran’s hypertension to a psychiatric disability or a skin disability of any kind. Moreover, the August 2020 VA examiner specifically did not link the Veteran’s hypertension to another disability. The Veteran is not competent to link a current diagnosis of hypertension to another disability, as he has no medical training or expertise. Jandreau, supra. As such, service connection cannot be granted on a secondary basis, even if he were to ultimately prevail on one/both of the pending claims. Finally, with regard to granting service connection for presumptive diseases under 38 C.F.R. § 3.309 (a), there is simply no objective evidence of record reflecting that the Veteran demonstrated hypertension to a compensable degree within one year of discharge from active duty. For hypertension to receive a compensable 10 percent rating, a Veteran must have diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more and require continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2019). In this regard, the Board notes that the December 1968 Report Medical Examination upon separation from service documented a blood pressure of 110/76. There is no other medical evidence of record from service or within one year of discharge from active duty service demonstrating hypertension to a compensable rating under Diagnostic Code 7101. Therefore, without evidence that the Veteran’s blood pressure recordings met the criteria for a compensable evaluation or that he required continuous medication for control within 1 year of his discharge from active duty service, service connection cannot be granted for hypertension on a presumptive basis under 38 C.F.R. § 3.309 (a). He has not alleged continuous symptoms and reports the initial diagnosis was more than three decades after service. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension (high blood pressure), and the benefit-of-the-doubt rule is not for application. REASONS FOR REMAND 1. Entitlement to service connection for disability of the skin, to include recurrent malignant melanoma, status-post excision of right preauricular node and modified neck dissection; basal cell carcinoma; squamous cell carcinoma; and seborrheic keratosis The Board notes that this issue was remanded in January 2020 in order to obtain a VA medical opinion. The Board specifically requested that, with respect to each skin disability diagnosed in the record, to specifically include malignant melanoma, status-post excision of right preauricular node and modified neck dissection; basal cell carcinoma; squamous cell carcinoma; and actinic keratosis, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically-related to service, to include as a result of the Veteran’s excessive sun exposure while working long hours on the decks of his assigned ship during his service in the Navy, frequently without a shirt on, without the use of sunscreen or any shade from the sun, and while sailing through tropical regions. As such, a VA medical opinion was obtained on this matter. In an August 2020 Disability Benefits Questionnaire (DBQ), the Veteran was noted as having the following: status post metastatic melanoma with modified radial neck dissection, right and preauricular, right dissecti; atypical nevus, scalp; status post basal cell carcinoma, multiple locations; status post squamous cell carcinoma, multiple locations; and melanoma, right ear, right cheek, and right side of neck. In an August 2020 VA medical opinion, the examiner determined the claimed condition was less likely than not incurred or caused by the claimed in-service injury, event, or illness. The examiner noted that the letter from Dr. Ellis detailing sun exposure and skin cancer risks is accurate, as sunlight exposure increased the risk of developing skin cancer. However, it is difficult to determine the amount of sun exposure during this time and how it directly impacted the Veteran’s risks for cancer, as there are no logs or data indicating how long the Veteran performed activities in the sun. There are no treatment records for sunburns or other skin abnormalities during that time which would increase the Veteran’s risks for skin cancer later on. Although even everyday exposures increase the risks of cancer, the Veteran served for approximately 2 years from 1966 to 1968, and exposure over time more likely than not led to the development of skin cancer and not solely the 2 years in which he served in active duty, even dating back to before service. There are no medical records or evidence of abnormal skin lesions or growths during that period. There are no precancerous lesions to note during that period. Other risk factors for the development of skin cancer have not been ruled out in his medical file, such as genetics, inherited conditions, etc. The Veteran also has a history of smoking, which research finds greatly increases the risks of some skin cancers. A nexus has not been established at this time. In a separate August 2020 VA opinion, this same examiner determined the claimed condition was less likely than not incurred or caused by the claimed in-service injury, event, or illness. The examiner noted that it is less likely than not that the Veteran’s skin cancer onset was while in service. There are no medical treatment records detailing precancerous lesions or any sunburns, etcetera, which would place the Veteran at high risk for skin cancer development later on. Although sun exposure does increase the chances of developing cancer, as noted by Dr. Ellis, there are other factors to consider, such as genetics, smoking, and hereditary conditions, which can place a patient at increased risks for developing cancer. The Veteran’s claims file is silent for diagnostic workups to rule out other etiologies at this time or link the Veteran’s sun exposure while serving to his skin cancers at this time. The Veteran also has a history of smoking, which places him at an increased risk for the development of skin cancer. Due to the various other risk factors and lack of diagnostics, unable to establish a connection. A nexus has not been established. The Board finds this opinion adequately addresses the Veteran’s skin cancer disabilities. However, no discussion is offered with regard to the Veteran’s keratosis. (Notably, he has been diagnosed with both seborrheic and actinic keratosis throughout the course of this appeal. See Cancer Centers of Southwest Oklahoma treatment record, May 2017; VA treatment record, March 2009.) As the January 2020 remand specifically requested that an opinion be provided regarding the etiology of all skin disabilities diagnosed in the record, the Board finds this issue must be remanded in order to allow the examiner the opportunity to discuss the Veteran’s keratosis diagnoses. 2. Entitlement to service connection for an eye disability, to include a nerve disorder affecting the right eye The Veteran has contended that he suffered a right eye disability due to injury to the nerve near the eye during surgery to remove a melanoma. In a July 2020 opinion, the VA examiner determined that the claimed condition is at least as likely as not proximately due to or the result of the Veteran’s service-connected condition. Therefore, as the issue of entitlement to service connection for an eye disability can be impacted by resolution of the Veteran’s skin disability claim being remanded, the Board finds that the issue of entitlement to service connection for an eye disability must be deferred, as it is inextricably intertwined with the issue being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). 3. Entitlement to service connection for a psychiatric disability of any kind, to include an acquired psychiatric disorder, PTSD, depression, and anxiety, including as secondary to a claimed skin disability As an initial matter, the Board notes that the Veteran has contended that his anxiety and depression developed as secondary to his claimed skin disability. Specifically, he asserted that he became depressed after being diagnosed with malignant melanoma. The Veteran’s wife additionally described that he had emotional difficulty after each diagnosis, and treatment for, skin cancer. In an August 2020 VA opinion, the examiner determined that the Veteran’s claimed condition is at least as likely as not proximately due to or the result of the Veteran’s service-connected condition. The examiner noted that the Veteran’s diagnosis of depressive disorder secondary to skin cancer is at least as likely as not a psychological response to the Veteran’s stress about his health and concerns about medical expenses, recurrence rates. Therefore, as the issue of entitlement to service connection for a psychiatric disability can be impacted by resolution of the Veteran’s skin disability claim being remanded, the Board finds that the issue of entitlement to service connection for a psychiatric disability must be deferred, as it is inextricably intertwined with the issue being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Return the claims file to the examiner who provided the August 2020 VA opinion pertaining to the Veteran’s skin disabilities. If the same examiner is no longer available, the file should be provided to another appropriate VA examiner. Upon review of the claims file, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has keratosis, actinic or seborrheic, that had its onset in service or is otherwise medically-related to service, to include as a result of the Veteran’s excessive sun exposure while working long hours on the decks of his assigned ship during his service in the Navy, frequently without a shirt on, without the use of sunscreen or any shade from the sun, and while sailing through tropical regions. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence of record, to include the favorable opinion provided by the private physician in the June 2014 independent medical examination, and assertions made by the Veteran that other than during his Navy service, he did not have significant sun exposure without the use of sunscreen, long articles of clothing, and hats to provide protection from the sun. A detailed rationale should be provided any opinions provided. If additional examination is needed to provide the requested opinion, such should be provided. 2. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims. The Veteran and his representative should be given an opportunity to respond prior to returning the case to the Board for further review. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.