Citation Nr: 21028529 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 13-08 743A DATE: May 11, 2021 ORDER Entitlement to service connection for a skin disability is denied. REMANDED Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for liver cancer is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) of another person or at the housebound rate is remanded. Entitlement to service connection for the cause of the Veteran's death for burial purposes is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's skin disabilities had onset during his active service, manifested within one year of service, or are otherwise caused by his active service, to include presumed herbicide exposure. CONCLUSION OF LAW The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1970 to March 1972. In February 2016, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran's and the Secretary's Joint Motion for Remand (JMR) and vacated and remanded that portion of the Board's April 2015 decision, which denied entitlement to service connection for hepatitis C and liver cancer. The JMR did not disturb that portion of the April 2015 decision in which the Board denied service connection for a lumbar spine disability, cervical spine disability, bladder disability, and bilateral hearing loss. The Veteran died in May 2016. Subsequently, the Appellant filed a claim based on his status as the Veteran's surviving brother requesting to continue the Veteran's claims. Upon death of a claimant, a person who would be eligible to receive accrued benefits due to the claimant may be substituted as the claimant for the purposes of processing the claims to completion. See 38 U.S.C. § 5121A. In this case, the Appellant's request for substitution was granted in a February 2017 letter, and noted in a February 28, 2017 Memorandum (indicating that the Appellant "can be recognized as the substitute claimant for the deceased Veteran based on reimbursement"). In August 2018, the Board remanded the claims for additional evidentiary development, to include VA medical opinions. The case has since been returned to the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service-connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. Here, military personnel records document service in the Republic of Vietnam from October 1970 to October 1971, thus the Veteran is presumed to have been exposed to herbicide (Agent Orange) agents during his service. 1. Entitlement to service connection for a skin disability The Veteran contended that he had a skin disability due to exposure to herbicide agents in service. Specifically, he reported that he developed blisters on his ankles in service and that those blisters continued to recur and spread after service. See September 2010 VA Form 21-4138, Statement in Support of Claim. With respect to current disabilities, during the appeal period, the Veteran was diagnosed with tinea pedis, Methicillin-resistant Staphylococcus aureus (MRSA) by furuncles, scabies, groin rash, onychomycosis, seborrheic keratosis, and prurigo nodular residuals. See November 2018 VA Examination. As stated above, the Veteran's exposure to Agent Orange is presumed. 38 C.F.R. § 3.307(a)(6)(iii). However, his skin disabilities are not listed conditions. 38 C.F.R. § 3.309(e). Accordingly, the Veteran is not entitled to service connection for a skin disability on a presumptive basis due to herbicide agent exposure. Although the presumptive path for establishing service connection is not available to the Veteran, the claim could be granted on a direct basis, but the preponderance of the evidence is also against finding that a skin disability is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). On entrance into service, a history of "boils" was noted. Service treatment records document treatment for penile skin lesion, assessed and treated as Syphilis in February 1971. The Veteran was seen again, the same month, for large penile skin lesions described as probable chancroid. On separation from service, a skin examination was normal. No diagnosis was provided. Post-service January 2002 private dermatology records document a foot rash attributed to contact reaction to shoes, but "no real problem with that." In November 2001 the Veteran had a tongue lesion that was subsequently removed in December 2001. February 2002 treatment records contain a normal skin examination with no reported skin symptoms. In May 2002 the Veteran complained of a foot rash present since Vietnam, a diagnosis of tinea pedis was provided. Subsequent skin examinations in November 2002 and February 2003 were normal. The Veteran sought treatment again in February 2003 for a foot rash. In June 2003 he was found to have a foot fungal infection. Thereafter, he did not report any skin symptoms again until October 2007, at which time, he had small skin lesions on his face and body of unknown etiology. It was noted that the lesions were consistent with scabies and the Veteran was prescribed scabies medication. In December 2007, the Veteran sought treatment for a groin rash. Medical records stated that the rash was of uncertain etiology and could be shingles or an insect bite. VA medical records contain a February 2008 Agent Orange Protocol exam, during which the Veteran complained of dry itchy flakey skin on his feet intermittently since the 1980's with blisters and treated with over the counter medication. He reported a recurrence of symptoms every few months that resolve with or without intervention, and denied Jungle Rot in Vietnam. In 2009, the Veteran sought treatment for rash/sores all over his body. A skin lesion was removed in September 2010 at which time a diagnosis of seborrheic keratosis was provided. The record contains conflicting medical opinions regarding whether the Veteran's skin disabilities were at least as likely as not related to an in-service injury, event, or disease, including herbicide exposure. VA medical records in 2009 and 2010 document treatment for tinea pedis. The physician noted the recurrent problem and stated, "I believe his condition is service connected." In April 2011 a VA podiatrist stated that the Veteran's tinea pedis and mycotic nails are related to his military service as this started during his service in Vietnam. In a June 2011 letter, a private physician stated "[the Veteran] had bilateral leg rashes consistent with Agent Orange exposure... While I did not see him directly after discharge [from] military service I consider it to be more likely than not that his current medical conditions are service connected." The Board affords the 2009, 2010, and 2011 medical opinions very little probative value as the physicians did not provide any rationale to support the conclusions reached. There is no indication that the physicians reviewed pertinent medical evidence in the claims file or referenced medical literature. In the absence of any rationale, the medical opinions are afforded low probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). On February 2011 VA skin examination, the examiner observed that the Veteran had few erythematous lesions on his right forearm and dorsum of the hand likely due to scratching multiple post inflammatory hyperpigmented macules on upper and lower extremities. The examiner described these lesions as prurigo nodularis residuals of prurigo nodularis. The examiner opined that it is less likely as not that the Veteran's current skin condition resulted from boils shown on entrance, and it is less likely as not that his current skin condition was caused by Agent Orange exposure. As rationale, the examiner stated that there was no objective evidence of prurigo nodularis or symptoms during service, or objective evidence that this condition had onset while in service. Further, the condition is not subject to the Agent Orange presumption. A VA medical opinion was obtained in November 2018. The examiner acknowledged that the Veteran had a history of boils noted on entrance, however, the term "boils" is a lay term and there was no objective evidence of a diagnosis. As for penile lesions diagnosed as Syphilis versus Chancroid during service, at separation such conditions had resolved. Post-service, the examiner acknowledged that the Veteran was provided a diagnosis of contact dermatitis in January 2001 that had also resolved. The first mention of tinea pedis was in May 2002, thereafter, the Veteran was provided diagnoses of MRSA manifested by furuncles diagnosed in October 2007, scabies in October 2007, groin rash of unclear etiology in July 2009, onychomycosis in July 2009, seborrheic keratosis in September 2010, and prurigo nodularis residuals of prurigo nodularis in February 2011. The November 2018 VA examiner opined that none of the Veteran's skin disabilities are related to his service, to include herbicide exposure. As rationale, the examiner indicated review of the claims file and concluded that medical records do not demonstrate continuity of symptomatology because no skin condition manifested within two years after service. Although the Veteran had penile lesions, Syphilis, and Chancroid during service, such conditions resolved during service and do not cause or place a person at risk for any of the Veteran's current skin disabilities. The examiner referenced medical literature on herbicide exposure stating that the only two dermatologic conditions possibly associated with herbicide exposure are chloracne and porphyria cutanea tarda. The examiner also acknowledged the Veteran's lay statements of continuity of symptomatology; however, these statements are not supported by objective medical evidence. As for the health providers that made statements that the Veteran's skin disabilities are due to service, the examiner acknowledged review of these opinions but disagreed with them because they did not reference medical records or literature to substantiate their opinions. The Board finds the November 2018 VA examiner's opinion probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the Veteran alleged continuity of a skin disability and symptomatology due to herbicide exposure during service, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he had the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Here, the first mention of skin disability is contained in 2002 private medical records, approximately 30 years after separation from active service. Although during this visit the Veteran complained of tinea pedis since service in Vietnam, there is no objective evidence of treatment prior to 2002 or during service for this condition. As discussed above, although the Veteran had and was treated for skin disabilities during service, such conditions resolved during service. On 1972 separation from active duty service, a skin clinical examination was normal. Consequently, the Board gives more probative weight to the competent medical evidence, to include the November 2018 VA medical opinion. Based on the foregoing, the Board finds that service connection for a skin disability is not warranted. In sum, because the preponderance of the evidence fails to show that the Veteran had a skin disability that had onset during service, or is otherwise related to service, to include conceded herbicide exposure, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is remanded. The Veteran contended that his bilateral peripheral neuropathy disability is due to exposure to herbicide agents in service. In the alternative, he alleged that his condition is secondary to his back disability. See February 2013 VA Examination. Regulations pertaining to herbicides used in Vietnam provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicide agents. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including early-onset peripheral neuropathy, for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307, 3.309(e). Early-onset peripheral neuropathy must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 78 Fed. Reg. 54763 -01 (Sept. 6, 2013). There is no herbicide-related presumption of service connection for "delayed-onset chronic" peripheral neuropathy. As an initial matter, the Board acknowledges that, pursuant to an August 2018 Board remand, in a March 2019 supplemental statement of the case (SSOC) the agency of original jurisdiction (AOJ) readjudicated the claim for service connection for bilateral peripheral neuropathy under VA's revised presumption concerning disabilities associated with exposure to certain herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In this case, the Board does not dispute that the Veteran served in the Republic of Vietnam and is presumed exposed to herbicide agents. However, the earliest mention of peripheral neuropathy is contained in VA treatment records that list a history of unspecified idiopathic peripheral neuropathy of unclear etiology since the 1990's, approximately 18 years after separation from active duty. As the onset of the disability and related symptoms are outside the prescribed applicable period, presumptive service connection based on herbicide agent exposure is precluded. Nevertheless, the Veteran served in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents in service. Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (stating that the inapplicability of presumptive service connection "does not foreclose proof of direct service connection"). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran was afforded a VA peripheral neuropathy examination in February 2013. The examiner provided a secondary opinion on the relationship between the Veteran's bilateral peripheral neuropathy and nonservice-connected back condition, but did not provide a medical opinion on direct service connection to include conceded herbicide exposure. Therefore, although the additional delay is regrettable, the Board finds that a remand is necessary for an addendum opinion addressing the relationship, if any, between the Veteran's presumed herbicide exposure and bilateral peripheral neuropathy of the lower extremities. 2. Entitlement to service connection for hepatitis C is remanded. 3. Entitlement to service connection for liver cancer is remanded. In the February 2016 JMR, the parties stipulated that the Veteran had alleged that his in-service drug use was a means of self-medication for his service-connected psychiatric disability. Because service connection can be allowed where an alcohol or drug abuse related disability is secondary to or caused by a primary disability, in August 2018, the Board remanded the hepatitis C claim for a VA opinion addressing whether the Veteran's hepatitis C was secondary to his use of drugs in service to self-medicate. See Allen v. Principi, 237 F. 3d 1368 (2001). In October 2018 a VA examiner indicated that he could not provide an opinion on the relationship between the Veteran's heroin use and service-connected PTSD without resorting to speculation. The examiner also indicated that he could not provide an opinion on the relationship between the Veteran's hepatitis C and in-service risk factors because he is a psychologist, not a physician. In March 2019, a VA examiner opined that the Veteran's hepatitis C was less likely than not related to in-service risk factors, including tattoos and sexual activity because the evidence of record does not support that his condition was due to such risk factors while in service. The Board finds the VA opinions inadequate. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the March 2019 VA examiner failed to provide any rationale for the negative nexus opinion other than the absence of evidence in medical records. In this regard, medical examiners may not rely on the absence of medical records to conclude no relationship exists between the claimant's current disability and their military service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the March 2019 VA examiner failed to comply with August 2018 remand directives requesting the examiner to address the following evidence: (1) August 1998 letter from Dr. K stating that hepatitis C was most often transmitted by blood products of needles, (2) February 2000 and February 2002 Veteran's contentions that he had hepatitis C since service, (3) June 2011 letter from Dr. J.S. stating that the Veteran's medical problems including hepatitis C are a direct result of Vietnam, and (4) February 2012 testimony from the Veteran that he self-medicated with marijuana and heroin in service to deal with "horrors" of what he witnessed in Vietnam. Because the Board's remand instructions have not been complied with, this issue must be remanded again for a new medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board notes that there is probative medical evidence in the file indicating that the Veteran's hepatitis C caused the ultimately fatal liver cancer. As the outcome of the claim for liver cancer is inextricably intertwined with the outcome of the claim for service connection for hepatitis C, the Board will defer consideration of that issue. 4. Entitlement to SMC based on the need for regular A&A of another person or at the housebound rate is remanded. 5. Entitlement to service connection for the cause of the Veteran's death for burial purposes is remanded. As a decision on the claims discussed above could affect the outcome of SMC and burial claims, the claims are inextricably intertwined, and a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). The matters are REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that bilateral peripheral neuropathy of the lower extremities had its clinical onset during service or is due to an event or incident of the Veteran's period of active service, to include presumed herbicide exposure. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In addition, in providing the opinion, the examiner must take into account the Veteran's personal circumstances and how the recognized risk factor(s) apply in his particular case. The examiner may not rely solely on the fact that there is no evidence of early onset peripheral neuropathy associated with herbicide exposure. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. Obtain a medical opinion regarding the Veteran's claims for service connection for hepatitis C and liver cancer. The examiner is specifically requested to review all pertinent records associated with the claims folder, specifically pertaining to the Veteran's documented substance abuse, including heroin with possible injection use. Following such review, the examiner is asked to address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's heroin use in service was caused or aggravated by the Veteran's now service-connected PTSD. (Note: the Veteran indicated on multiple occasions that he used heroin to curb his psychiatric symptoms in service, or self-medicate, and has stated that he attended an amnesty drug treatment program in Vietnam). (b.) If so, is it at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis C is causally related to the substance abuse found to be secondary to the service-connected psychiatric disability? (c.) If the Veteran's in-service heroin use is not determined to be at least as likely caused or aggravated by the Veteran's PTSD, is it at least as likely as not that the Veteran's hepatitis C was due to other claimed in-service risk factors, to include an in-service tattoo and/or in-service sexual activity. The examiner should note that the Veteran was treated for syphilis during service. (d.) In providing responses to the above questions, the examiner is asked to offer a full discussion of all possible modes of transmission from such substance abuse. The examiner is also asked to address the significance, if any, of the following evidence: i. The August 1998 letter from Dr. K. stating that the Veteran had hepatitis for "quite some time," and that hepatitis C was most often transmitted by blood products of needles. ii. The Veteran's contentions in February 2000 and February 2002 that he had hepatitis C in the 1970s in service. iii. The June 2011 letter from Dr. J.S. stating that the Veteran's medical problems, to include hepatitis C, are a direct result of service in Vietnam. iv. The Veteran's February 2012 testimony that he self-medicated with marijuana and heroin in service to deal with the "horrors" of what he witnessed in Vietnam and that he was diagnosed with hepatitis C in service. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.