Citation Nr: 21027188 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-25 860 DATE: May 4, 2021 ORDER Service connection for stomach issues and bloating (GERD) is denied. Service connection for detrusor failure with voiding dysfunction (DFVD) is denied. REMANDED Service connection for dermatitis/eczema, folliculitis, actinic keratosis, porphyria cutanea tarda (skin disorders) is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's GERD is related to or otherwise caused by his active military service, to include either exposure to herbicides while serving on board the USS Oriskany while within the territorial waters of the Republic of Vietnam, or exposure to smoke, fumes, and toxins related to a fire on board the USS Oriskany in October 1966. 2. The weight of the evidence is against a finding that the Veteran's DFVD is related to or otherwise caused by his active military service, to include either exposure to herbicides while serving on board the USS Oriskany while within the territorial waters of the Republic of Vietnam, or exposure to smoke, fumes, and toxins related to a fire on board the USS Oriskany in October 1966. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.309(e). 2. The criteria for service connection for DFVD have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.309(e), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from October 1955 to September 1959, and from December 1959 to April 1967. The matter is on appeal before the Board from an October 2014 rating decision. In the Veteran's appeal to the Board in May 2017, he initially requested a Board hearing, however, in a May 2019 letter the hearing request was withdrawn. The Board previously remanded the issues for further development in June 2019. Additional evidence was added to file after the latest supplemental statement of the case (SSOC) in January 2021. This evidence is either duplicative or not relevant to the instant issues. As such, a waiver of RO review of this evidence is not needed. See 38 C.F.R. § 20.1304(c). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Additionally, service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for Veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Service in Vietnam includes the landmass and the territorial sea, which is defined as the 12 nautical miles surrounding Vietnam. See Procopio v. Wilkie, 913 F.3d 1375-1376, 1379-1380 (Fed. Cir. 2019). 1. Service Connection for GERD The Veteran asserts that his GERD is related to his active service, to include either exposure to herbicides, or exposure to smoke, fumes, and toxins from a fire that occurred on board the USS Oriskany in October 1966. A private treatment record from February 2009 notes the Veteran's past medical history to be significant for GERD. Ongoing treatment records reflect a current diagnosis for GERD, with the earliest noted in June 2012. As such, the Veteran has a current disorder, GERD. The Veteran's service treatment records do not contain any diagnoses for GERD, or any other stomach issues. Nor do they contain any complaints or treatments that may be related to GERD, or any other stomach issues. The record reflects that the USS Oriskany was within the territorial waters of the Republic of Vietnam while the Veteran was on board. As such, exposure to herbicides is presumed. However, GERD is not on the list of presumptive diseases entitled to service connection due to herbicide exposure. 38 C.F.R. § 3.309(e). The Veteran has not submitted any objective medical evidence or medical treatises that would support, or even suggest, a correlation between herbicide exposure and the later development of GERD. As such, the record does not support service connection for GERD due to exposure to herbicides on a direct basis. As to the Veteran's alternate contention that his GERD is related to exposure to smoke, fumes, and toxins from a fire that occurred on board the USS Oriskany in October 1966. The record does reflect that a fire occurred on board the USS Oriskany in October 1966, and that the Veteran was serving on board at the time. Accordingly, the Veteran underwent a VA examination in October 2014. The VA examiner found that the Veteran's GERD was less likely than not (less than 50 percent probability) incurred in or caused by in-service exposure to asbestos. The examiner explained that the record was silent for a correlation of GERD to asbestoses. Additionally, a review of the WEB did not support any evidence-based information that asbestoses causes GERD. An additional VA medical opinion was rendered in March 2017. The VA examiner found that the Veteran's GERD was less likely than not incurred in or caused by the smoke, fumes, and toxin exposure from the October 1966 fire aboard the USS Oriskany. The examiner explained that a search of current medical literature failed to illustrate any direct or indirect connection between the Veteran's GERD to a history of smoke, fumes, and toxins from a fire. It was noted that there were no specific toxins identified from the fire related by the Veteran, and no specific search for unidentified toxins could be conducted. Thus, there was no evidence that the Veteran's claimed condition of GERD could be linked to exposure to the reported smoke, fumes, and toxin reported by the Veteran. Taken together, the VA opinions of record establish that the Veteran's condition is not at least as likely as not related to an in-service injury, event, or disease. The combined opinions are probative, because they address all medical questions raised by the case, are based on an accurate medical history, and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the probative evidence does not support a nexus for GERD due to either exposure to herbicides, or due to exposure to smoke, fumes, and toxins associated with a fire on board the USS Oriskany in October 1966. Consideration is given to the Veteran's contentions that his claimed condition of GERD was incurred in or caused by his service, to include both exposure to herbicides and exposure to smoke, fumes, and toxins due to a fire on board the USS Oriskany in October 1966. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of GERD, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran is competent to report his symptoms in relation to his GERD, however, as this case involves a complex medical question, the VA opinions are considered the more probative evidence. In addition, as no evidence outside of the Veteran's contentions has been submitted that suggests that his GERD is related to his exposure to herbicides, a remand is not warranted to obtain a VA medical opinion that addresses whether the Veteran's GERD is related to exposure to herbicides. A VA examination is not warranted based only on the Veteran's own conclusory, generalized statements, where there is no other supporting evidence in the record. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); Euzebio v. Wilkie, 31 Vet. App. 394 (2019); cf Colantonio v. Shinseki, 606 F.3d 1378, 1381-82 (Fed. Cir. 2010). Accordingly, service connection for GERD is denied. 2. Service Connection for DFVD The Veteran asserts that his DFVD is related to his active service, to include either exposure to herbicides, or exposure to smoke, fumes, and toxins from a fire that occurred on board the USS Oriskany in October 1966. A private treatment record from February 2009 shows a diagnosis of DFVD. It is also reported that the Veteran was originally seen for DFVD in 2006. As such, the Veteran has a current disorder, DFVD. The Veteran's service treatment records do not contain any diagnoses for DFVD, or any other bladder issues. Nor do they contain any complaints or treatments that involve DFVD or any other bladder issues. As previously noted, exposure to herbicides is presumed. However, DFVD is not on the list of presumptive diseases entitled to service connection due to herbicide exposure. 38 C.F.R. § 3.309(e). The Veteran has not submitted any objective medical evidence or medical treatises that would support, or even suggest, a direct correlation between herbicide exposure and the later development of DFVD. As such, the record does not support service connection for DFVD due to exposure to herbicides on a direct basis. The Board notes that a private medical opinion was submitted in November 2020, in which the private physician found that the Veteran's DFVD is at least as likely as not secondary to benign prostatic hyperplasia. Additionally, the physician found that the Veteran's benign prostatic hyperplasia is at least as likely as not secondary to his Agent Orange exposure. The Veteran is not currently service-connected for benign prostatic hyperplasia, nor is the issue of service connection for benign prostatic hyperplasia currently on appeal. As such, secondary service connection at this time cannot be granted as a matter of law. See 38 C.F.R. § 3.310; DeLisio v. Shinseki, 25 Vet. App. 45, 59 (2011). As to the Veteran's alternate contention that his DFVD is related to exposure to smoke, fumes, and toxins from a fire that occurred on board the USS Oriskany in October 1966. As previously noted, the record does reflect that a fire occurred on board the USS Oriskany in October 1966, and that the Veteran was serving on board at the time. Accordingly, the Veteran underwent a VA examination in October 2014. The VA examiner found that the Veteran's DFVD was less likely than not (less than 50 percent probability) incurred in or caused by in-service exposure to asbestos. The examiner explained that the record was silent for a correlation of voiding dysfunction and asbestos exposure. Additionally, a review of the "WEB" did not support any evidence-based information that asbestoses causes DFVD. An additional VA medical opinion was rendered in March 2017. The VA examiner found that the Veteran's DFVD was less likely than not incurred in or caused by the smoke, fumes, and toxin exposure from the October 1966 fire aboard the USS Oriskany. The examiner explained that a search of current medical literature failed to illustrate any direct or indirect connection between the Veteran's DFVD to a history of smoke, fumes, and toxins from a fire. It was noted that there were no specific toxins identified from the fire related by the Veteran, and no specific search for unidentified toxins could be conducted. Thus, there was no evidence that the Veteran's claimed condition of DFVD could be linked to exposure to the reported smoke, fumes, and toxin reported by the Veteran. Taken together, the VA opinions of record establish that the Veteran's condition is not at least as likely as not related to an in-service injury, event, or disease. The combined opinions are probative, because they address all medical questions raised by the case, are based on an accurate medical history, and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. As such, the probative evidence does not support service connection for DFVD due to either exposure to herbicides, or due to exposure to smoke, fumes, and toxins associated with a fire on board the USS Oriskany in October 1966. Consideration is given to the Veteran's contentions that his claimed condition of DFVD was incurred in or caused by his military service, to include both exposure to herbicides and exposure to smoke, fumes, and toxins due to a fire on board the USS Oriskany in October 1966. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of DFVD, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran is competent to report his symptoms in relation to his DFVD, however, as etiology is a complex medical question, his opinion is not competent to establish a nexus to service. In addition, as no evidence outside of the Veteran's contentions has been submitted that suggests that his DFVD is directly related to his exposure to herbicides, a remand is not warranted to obtain a VA medical opinion that addresses whether the Veteran's DFVD is directly related to exposure to herbicides. A VA examination is not warranted based only on the Veteran's own conclusory, generalized statements, where there is no other supporting evidence in the record. Waters, 601 F.3d at 1278; Euzebio, 31 Vet. App. 394. Accordingly, service connection for DFVD is denied. REASONS FOR REMAND Service Connection Skin Disorders The Veteran asserts that his skin disorders are related to his active service. Specifically, he contends that his disorders are either related to exposure to herbicides while serving on the USS Oriskany, or are related to exposure to smoke, fumes, and toxins from a fire that occurred on board the USS Oriskany in October 1966. As noted above, exposure to herbicides is presumed. The Veteran's record reflects diagnoses for skin disorders. In a June 2013 private medical note, the Veteran was reported to have had a rash present for one year and six months. Biopsies from May 2012 were noted to have been reviewed that showed interface dermatitis, vacuolar type. A current diagnosis of folliculitis was provided. At a July 2013 VA appointment with a primary care physician, the Veteran reported that he had a full body rash for the past two years, and that he had been evaluated by the Mayo clinic, but that they did not know what he had. He was noted to have a pruritic rash over his arms, legs, and upper body torso. The VA primary care physician questioned whether the Veteran's skin disorder could be secondary to exposure to Agent Orange. At an appointment in January 2015 with the Veteran's VA primary care provider, the Veteran stated that he has had periodic skin papules with mild itching since 1966. In October 2020, a lay statement was submitted from the Veteran's sister, in which she reported that the Veteran's skin has broken out and itched ever since his return from the service. No VA medical opinions have been obtained pertaining to whether the Veteran's skin disorders are directly related to herbicide exposure. In addition, in a June 2017 statement, the Veteran's previous representative argued that the Veteran's skin condition was related to exposure to soot from the October 1966 fire on board the USS Oriskany, with a citation to a medical treatise. This evidence was submitted after a negative VA opinion pertaining to exposure to smoke, fumes, and toxins was rendered in March 2017, and thus had not been reviewed by the medical examiner. As such, a remand is warranted to obtain a VA medical opinion to determine whether the Veteran's skin disorders are either related to herbicide exposure or are related to exposure to smoke, fumes, and toxins from the October 1966 fire aboard the USS Oriskany. The matters are REMANDED for the following action: Obtain a VA medical opinion to determine the etiology of the Veteran's skin disorder. If a VA examination is required to answer the Board's questions, then schedule the Veteran for an examination. The examiner should answer the following questions: Is it at least as likely as not that the Veteran's skin disorder began in or was otherwise caused by his active service, to include exposure to herbicides while serving aboard the USS Oriskany within the territorial waters of the Republic of Vietnam, or exposure to smoke, fumes, and toxins from an October 1966 fire aboard the USS Oriskany? (Continued on the next page) In answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure even though it is not on the list of "presumptive" diseases. When providing an opinion, the examiner should take into account and discuss the argument submitted in June 2017 by the Veteran's previous representative, which included a medical treatise citation. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.