Citation Nr: 21028990 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-26 119 DATE: May 12, 2021 ORDER Service connection for hypertension is granted. Service connection for skin cancer is denied. Service connection for a back condition is denied. Service connection for a urinary disorder is denied. FINDINGS OF FACT 1. The Veteran's current hypertension is related to his presumed herbicide exposure in the Republic of Vietnam. 2. The Veteran's skin cancer was not present during service or for many years thereafter and is not otherwise etiologically related to service. 3. The Veteran's back condition was not present during service or for many years thereafter and is not otherwise etiologically related to service. 4. The Veteran's urinary disorder was not present during service or for many years thereafter and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for skin cancer have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for a urinary disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United Stated Army from January 1968 to August 1969, to include service in the Republic of Vietnam. He died in September 2019. The appellant is the Veteran's surviving spouse and has been substituted as the claimant for the purposes of processing the above-listed claims to completion. 38 U.S.C. § 5121A. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2018 and December 2020 when they were remanded for additional development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service incurrence for certain diseases, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § § 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. "Service in Vietnam" means actual service in the country of Vietnam from January 9, 1962 to May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); See generally Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (finding that VA's requirement that a veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute). In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5758 (1990). 1. Service connection for hypertension. As noted above, the Veteran had active duty service in the Republic of Vietnam. Accordingly, the Veteran is presumed to have been exposed to herbicides consistent with such service. 38 U.S.C. § 1154(a). A review of the record does reflect that the Veteran was diagnosed with and received treatment for hypertension. Following his passing, the likely etiology of the hypertension was evaluated by a VA examiner in July 2020. The Board found in its December 2020 decision that the July 2020 VA medical opinion was insufficient, as the examiner discounted the possible connection between hypertension and the Veteran's exposure to toxic herbicides in service without providing any rationale other than the lack of regulations specifically allowing for presumptive service connection for hypertension as due to in-service herbicide exposure. While service connection is not presumed as hypertension is not one of the diseases subject to presumptive service connection under 38 C.F.R. § 3.307(a)(6)(iii), service connection may still be warranted if the evidence shows that the condition is otherwise attributable to service, to include his presumptive exposure to toxic herbicides in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The claim was remanded to elicit an addendum opinion that addressed the possible connection between the Veteran's exposure to toxic herbicides in service and his later development of hypertension. The Veteran was afforded an additional VA medical opinion for hypertension in December 2020. The VA examiner opined that the hypertension was at least as likely as not incurred in, caused by or a result of the Veteran's active military service, to include as due to exposure to toxic herbicides while serving in the Republic of Vietnam. While acknowledging the Veteran had nonservice-connected risk factors for the development of hypertension including advancing age, family history of hypertension, history of tobacco abuse, and obesity, the VA examiner found that after review of medical treatise evidence, there was sufficient evidence of an association of hypertension with the chemicals of interest (COIs). Based upon review of medical treatise evidence, the examiner concluded the Veteran's Agent Orange exposure played a role in his development of hypertension. Inasmuch as the July 2020 VA examiner's opinion has been found to be inadequate, the only adequate medical opinion of record is the December 2020 VA medical opinion which was in favor of the Veteran's claim. Inasmuch as the opinion was provided by a medical professional competent to opine on this matter, and after review of the Veteran's claims file, the Board finds this opinion to be probative and persuasive. Therefore, after resolving any doubt in the Veteran's favor, the Board finds that the medical evidence of record sufficiently establishes the Veteran's hypertension was related to his presumed herbicide exposure in the Republic of Vietnam. Accordingly, service connection for hypertension is warranted. 2. Service connection for skin cancer. The Appellant contends that the Veteran developed skin cancer prior to his passing that was attributable to his exposure to toxic herbicide agents while in service in the Republic of Vietnam. A review of the record does reflect that the Veteran was diagnosed with and received treatment for melanoma and basal cell carcinoma. The Veteran's service treatment records do not show any treatment or diagnosis for skin cancer during his active service. A VA medical opinion was obtained in February 2021 to determine the likely etiology for his skin cancer. The VA examiner stated that the Veteran's history of basal cell carcinoma (left nasal ala s/p MOHs) was less likely as not incurred in, caused by or a result of service, to include exposure to Agent Orange. It was noted that the Veteran was evaluated in the dermatology clinic in September 2013 for a concerning lesion on the left nasal, during which it was noted that he had a history of significant sun exposure and multiple sunburns when he was younger, as well as a family history of melanoma in his sister. A shave biopsy of the lesion and pathology revealed basal cell carcinoma and he was subsequently treated with MOHs. The examiner noted Veteran's service treatment records were silent for skin cancer and his currently available medical records outside of the September 2013 record were silent for skin cancer. The examiner noted that medical treatise evidence found that non-melanoma skin cancers (basal cell and squamous cell carcinoma) are the most common types of cancer and that 80 percent are basal cell carcinoma. The medical treatise evidence also indicated that excessive exposure to ultraviolet (UV) radiation was the most important risk factor for non-melanoma skin cancers. The examiner stated that the most important risk factor for the development of basal cell carcinoma is UV radiation (sun exposure, past sunburns), which as noted in the September 2013 medical records, the Veteran had a history of significant sun exposure and multiple sunburns. Therefore, the February 2021 VA examiner opined that the Veteran's nonservice-related sun exposure was the most likely etiology of his basal cell carcinoma of the left nasal ala s/p MOHs. After a review of the evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran's skin cancer began many years after his period of service and was not caused by any incident of service. Service treatment records are negative for complaints, treatment, or diagnosis of skin cancer. The Veteran's skin cancer was neither incurred in nor aggravated by service. The Board finds that as a lay person, the Veteran and the appellant lack the requisite education, training, and experience needed to self-diagnose skin cancer or render an opinion as to its etiology. The Veteran is competent to speak on matters such as possible symptomatology, as well as having been told he was diagnosed with skin cancer or having seen or been told about skin problems. See Davidson v. Shinseki, 581 F.3d 1313 (2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he merely asserted that his skin cancer is directly related to his herbicide exposure while on active duty service. The Veteran did not report symptomatology while in service and did not report that his skin cancer was linked to any event, incident, or injury while in-service. Accordingly, the more competent evidence related to the nature and etiology of the Veteran's skin cancer is the February 2021 examiner's opinion. To the extent it is contended that the Veteran's skin cancer is due to presumptive herbicide exposure in service, the Board finds that the preponderance of the evidence is against such claim. Skin cancer is not a presumptive disease associated with herbicide exposure. See 38 C.F.R. § 3.309(e). The Board acknowledges the submission of treatise evidence in June 2016 in support of the Veteran's claim which indicated there was an increased risk of skin cancer for veterans with herbicide exposure. However, there is no evidence that in the Veteran's individual case, his particular skin cancer was due to his conceded herbicide exposure. The only competent medical opinion addressing the etiology of the Veteran's skin cancer is the February 2021 VA medical opinion. Inasmuch as the opinion was provided by a medical professional competent to opine on this matter, and after review of the Veteran's claims file, the Board finds this opinion to be probative and persuasive. Absent any competent evidence against the February 2021 VA examiner's opinion, the Board finds that the preponderance of the evidence is against the claim for service connection for skin cancer, to include as due to herbicide exposure; there is no doubt to be resolved and service connection for skin cancer is denied. 3. Service connection for a back condition. The Appellant contends that the Veteran developed a cervical spine condition prior to his passing that was attributable to the physical demands of his duties in service. A review of the record does reflect that the Veteran was diagnosed with mild multilevel discogenic disease of the cervical spine in a February 2017 magnetic resonance imaging (MRI). The Veteran's service treatment records do not show any treatment or diagnosis for a neck or spine condition during his active service. The Veteran was afforded a VA medical opinion in February 2021. The VA examiner stated that the Veteran's cervical spine degenerative disc disease was less likely as not incurred in, caused by or a result of service by evidence of record. It was noted that the Veteran's service treatment records were silent for symptoms, complaints, assessment, or treatment for a spine condition. The currently available evidence of records has one notation of a spine condition which was the above-noted MRI of the cervical spine performed in February. Based on this evidence, the February 20201 VA examiner opined that the Veteran's mild cervical degenerative disc disease was most likely due to age-related degenerative changes and repeated use over his lifetime. The Board observes that the medical evidence does not suggest that the Veteran's cervical spine condition was related to his period of active service or the result of a service-connected condition. The weight of the evidence shows that the Veteran's cervical spine condition began many years after his period of service and was not caused by any incident of service. Service treatment records are negative for complaints, treatment, or diagnosis of a cervical spine condition. The Veteran's cervical spine condition was neither incurred in nor aggravated by service. While the Appellant asserts that the Veteran's cervical spine disability had its onset in service, the Veteran and the Appellant have not shown they possess the specialized training sufficient to render such an opinion. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). The only competent medical opinion addressing the etiology of the Veteran's back condition is the February 2021 VA medical opinion. Inasmuch as the opinion was provided by a medical professional competent to opine on this matter, and after review of the Veteran's claims file, the Board finds this opinion to be probative and persuasive. In sum, the preponderance of the competent, credible, and probative evidence indicates that the Veteran's cervical spine disability is not related to service or caused or aggravated by his any of his service-connected disabilities. The evidence of record does not show that the Veteran suffered a chronic cervical spine condition while in service or had recurrent cervical spine problems since he separated from service. Accordingly, the claim for service connection for a cervical spine condition is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence are against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 4. Service connection for a urinary disorder. The Appellant contends that the Veteran developed a urinary disorder prior to his passing that was attributable to his exposure to herbicide agents while in service in the Republic of Vietnam. A review of the record does reflect that the Veteran was diagnosed with and received treatment for benign prostatic hyperplasia/hypertrophy (BPH). The Veteran's service treatment records do not show any complaints, treatment or diagnosis for a urinary disorder during his active service. The Veteran was afforded a VA medical opinion in February 2021. The VA examiner stated that the Veteran's BPH was less likely as not incurred in, caused by or a result of service, to include herbicide exposure. It was noted that the Veteran's service treatment records were silent for a chronic urinary condition. The first notation of urinary symptoms in the currently available evidence of record was in November 2011 when he was felt to have likely benign prostatic hypertrophy after he complained of urinary symptoms and a rectal examination revealed an enlarged prostate. After review of medical treatise evidence, the examiner indicated that the evidence was inadequate or insufficient to establish an association between herbicide exposure and non-malignant urinary disorders. Furthermore, the risk factors for BPH with overactive bladder include increasing age (one-third of men with moderate to severe symptoms by age 60, half by age 90 Veteran noted symptoms in his sixties), obesity, genetic factors/family history. The VA examiner was unable to locate medical literature that supported an association between the Veteran's urinary condition and herbicide exposure. Therefore, the February 2021 VA examiner opined that the Veteran's BPH with overactive bladder was most likely due to increasing age, obesity and genetics. The Board observes that the medical evidence does not suggest that the Veteran's urinary disorder was related to his period of active service or the result of a service-connected condition, or due to AO exposure while in service. The weight of the evidence shows that the Veteran's urinary disorder began many years after his period of service and was not caused by any incident of service. Service treatment records are negative for complaints, treatment, or diagnosis of a urinary disorder. The Veteran's urinary disorder was neither incurred in nor aggravated by service. To the extent it is contended that the Veteran's BPH is due to presumptive herbicide exposure in service, the Board finds that the preponderance of the evidence is against such claim. BPH is not a presumptive disease associated with herbicide exposure. See 38 C.F.R. § 3.309(e). The Board finds that as a lay person, the Veteran and the appellant lack the requisite education, training, and experience needed to self-diagnose urinary disorders or render an opinion as to its etiology. The Veteran and the appellant are competent to speak on matters such as possible symptomatology, as well as having been told he was diagnosed with a urinary disorder or having seen or been told about urinary problems. See Davidson v. Shinseki, 581 F.3d 1313 (2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran has merely asserted that his BPH was directly related to his herbicide exposure while on active duty service. The Veteran did not report symptomatology while in service and did not report that his urinary disorder was linked to any event, incident, or injury while in-service. To the extent the Appellant has raised the theory that the Veteran's urinary disorder is secondary to Parkinson's disease, the Board finds that the theory has no merit. Inasmuch as the Veteran has not established service connection for Parkinson's disease, a threshold legal requirement for establishing secondary service connection is not met, i.e., it is not shown that the primary disability (Parkinson's disease) alleged to have caused or aggravated the disability for which secondary service connection is sought (urinary disorder) is service-connected. Accordingly, the claims of service connection for a urinary disorder as secondary to Parkinson's disease is legally insufficient, and must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The only competent medical opinion addressing the etiology of the Veteran's urinary disorder is the February 2021 VA medical opinion. Inasmuch as the opinion was provided by a medical professional competent to opine on this matter, and after review of the Veteran's claims file, the Board finds this opinion to be probative and persuasive. Absent any competent evidence against the examiner's opinion, the Board finds that the preponderance of the evidence is against the claim for service connection for a urinary disorder, to include as due to herbicide exposure; there is no doubt to be resolved and service connection for a urinary disorder is denied. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.