Citation Nr: 21027978 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-32 152 DATE: May 10, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for atrial fibrillation, to include as due to herbicide exposure, is denied. Entitlement to service connection for a skin condition, including chloracne, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. There is at least a balance of evidence on the question of whether the Veteran's hypertension is the result of military service. 2. The probative medical evidence of record does not show that the Veteran's atrial fibrillation, was due to military service, to include exposure to herbicides. 3. The probative medical evidence of record does not show that the Veteran's skin condition is due to military service, to include exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for service connection for atrial fibrillation are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 3. 2. The criteria for service connection for a skin condition are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to November 1968. This case comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision. This case was previously before the Board in March 2019 and December 2020, but remanded for additional development. That development having been completed; this case is once again before the Board. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection may also be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, the evidence must show: (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. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If a condition noted in service is not shown to be chronic, then a showing of continuity of symptomatology after service will be required to establish service connection. 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity to symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309 (a)). Additionally, the law provides that, if a Veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e) (2019). For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). Here, although the Veteran has conceded exposure to herbicides due to confirmed service in the Republic of Vietnam during the prescribed presumptive period, his claimed disabilities are not included on the list at 38 C.F.R. § 3.309 (e). Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran who does not meet the requirements of 38 C.F.R. § 3.309 does not preclude him from establishing service connection by way of proof of actual direct causation. Combee v. Brown, 34 F.2d 1039, 1041-42 (Fed. Cir. 1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Hypertension The Veteran contends that his currently diagnosed hypertension is related to military service. In particular, the Veteran has indicated that this condition was the result of exposure to herbicides while serving in Vietnam, which has been previously conceded. Service treatment records (STRs) did not reveal any complaints or diagnosis relating to hypertension. It was not shown within one year of leaving service. A review of the Veteran's available post-service outpatient treatment records, beginning in 2011, show that the Veteran has been treated for hypertension since that time. There has been no discussion of any relationship to military service or herbicides. The Veteran was afforded a VA examination in August 2019. At that time, the examiner noted that the Veteran had been diagnosed with hypertension since around 2011. The examiner gave a confusing response on the question of whether the Veteran's hypertension was due to herbicide exposure. An additional opinion from this person was obtained in February 2021, where she stated that it was as likely than not that this Veteran's hypertension was the result of military service, based on a correlation found in a 2018 study between herbicide agent exposure and hypertension. Based upon the above findings, the Board finds that the Veteran is entitled to service connection for hypertension. He has shown the presence of a current disability, and there is at least a balance of positive and negative nexus evidence on the question of its relationship with service. Therefore, the evidence at least is in equipoise. Accordingly, a basis upon which to establish service connection for hypertension has been presented. The appeal for service connection for hypertension is granted. 2. Heart The Veteran contends that his currently diagnosed atrial fibrillation is related to military service. In particular, the Veteran has indicated that this condition was the result of exposure to herbicides while serving in Vietnam. At the outset, it is noted that the Board has already previously rendered a decision on the issue of ischemic heart disease, finding that the Veteran has had no such diagnosis during the appeal period. . STRs did not reveal any complaints or diagnosis relating to any heart condition. No heart condition is shown within one year of leaving service. A review of the Veteran's available post-service outpatient treatment records, beginning in 2011, show that the Veteran has been treated for atrial fibrillation. There has been no discussion of any relationship to military service or herbicides. The Veteran was provided with a VA examination in August 2019. The examiner found that the Veteran had been diagnosed with atrial fibrillation since 2011. It was opined that the atrial fibrillation was less likely than not related to military service, to include herbicide exposure. No substantive rationale, however, was provided. The Veteran was provided with an additional VA examination in February 2021. A diagnosis of atrial fibrillation was continued. The examiner continued to opine that the atrial fibrillation was less likely than not related to military service, include herbicide exposure. In support, it was provided that the Veteran's STRs showed no evidence of a heart condition and he did not begin to show actual symptoms thereof until seeking treatment in 2011. Although it was noted that the Veteran had indicated that he could tell he was having atrial fibrillation by experiencing a sensation of "feeling sick" during service, this experience was determined to be a non-specific symptom that could not be confirmed as evidence of a diagnosis of atrial fibrillation prior to 2011. Additionally, there was no support for herbicide agent exposures being the cause of the atrial fibrillation, as there was too long of a time lapse from initial exposure to diagnosis to support any correlation. Based upon the above findings, the Board finds that the Veteran is not entitled to service connection for atrial fibrillation. The Veteran has the disability, but no probative evidence supports a relationship between the disability and service, and a VA medical opinion provided an adequate basis for concluding no relationship exists between service, and the disability. The Veteran has asserted that his atrial fibrillation is related to service, but the Board finds that this etiological opinion is not probative as the Veteran has no medical expertise to render a competent opinion on this subject. Cardiovascular disorders are complex internal conditions, as opposed to a disorder that is capable of lay observation such as ringing in the ears or varicose veins. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Moreover, any such opinion is outweighed by the probative VA opinions which addressed the lay evidence of record. Accordingly, the most probative evidence of record indicates that atrial fibrillation is not related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Skin The Veteran contends that his currently diagnosed skin disorder is related to military service. In particular, the Veteran has indicated that this condition was the result of exposure to herbicides while serving in Vietnam. STRs did not reveal any complaints or diagnosis relating to any skin condition and none is noted within one year of leaving service. A review of the Veteran's available post-service outpatient treatment records, beginning in 2011, show that the Veteran has been treated for various skin conditions, and more recently skin cancer. The Veteran was provided with a VA examination in August 2019. The examiner found that the Veteran had been diagnosed with skin cancer since June 2017. There were no findings that supported a diagnosis of chloracne or any other acneform disease. It was opined that the Veteran's skin condition was less likely than not related to military service, but this conclusion was not fully explained. The Veteran was provided with an additional VA examination in February 2021. A diagnosis of skin cancer was continued. The examiner continued to opine that the skin condition was less likely than not related to military service, include herbicide exposure. In support, it was provided that the Veteran's STRs showed no evidence of a skin condition and the Veteran did not begin to show actual symptoms of it until seeking treatment in the 2000s. Although it was also noted that sun exposure experienced during the Veteran's service could have caused his skin condition, the examiner found that such exposure represented such a small fraction of the Veteran's total lifetime sun exposure that, in light of the many years between exposure and diagnosis, this relationship was very unlikely. Additionally, there was no support noted for herbicides being the cause of the skin condition, as there was also too long of a time lapse from initial exposure to diagnosis to support any correlation. Based upon the above findings, the Board finds that the Veteran is not entitled to service connection for a skin condition. He does not have a diagnosis of chloracne or any skin disease that is currently recognized by the presumptive list for herbicide exposure. Further, the only probative medical evidence that discusses etiology of a skin condition is against the claim. These facts weigh against the claim that the Veteran's skin condition would have been related to any injury, or disease in military service, to include herbicide exposure. (Continued on the next page) The Veteran has asserted that his skin condition is related to service, but the Board finds that this etiological opinion is not probative as he is not shown to possess medical expertise. The cause of any skin disorder would require knowledge of the composition of skin and how it reacts to various stimuli. See Jandreau, 492 F.3d at 1372; Barr, 21 Vet. App. at 310; Charles, 16 Vet. App. at 374. Moreover, any such opinion is outweighed by the probative VA opinion. Accordingly, the most probative evidence of record indicates that a skin condition is not related to service. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.