Citation Nr: 21031876 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-42 754 DATE: May 24, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for right ear skin cancer, diagnosed as basal cell carcinoma, is granted. FINDINGS OF FACT 1. The Veteran has a diagnosis of hypertension which is at least as likely as not related to an incident of active service. 2. The Veteran has a diagnosis of right ear basal cell carcinoma which is at least as likely as not related to an incident of active service CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for basal cell carcinoma of the right ear are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1960 to November 1968. He has confirmed service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in October 2018 for further development. It is noted that during the pendency of the development ordered in the prior remand, the RO granted a claim of service connection for a heart disability, diagnosed as atherosclerotic cardiovascular disease with left bundle branch block. While that claim was considered part of the Veteran's heart disability claim, which included hypertension, the claim for hypertension as a separate disability remains denied and is addressed herein. Also remanded at that time were claims of service connection for gastroesophageal disease (GERD) and bilateral knee disabilities. Those claims were subsequently granted, and they are no longer for consideration as part of this appeal. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Further, if a veteran was exposed to a herbicide agent during active military, naval, or air service in Vietnam, then certain diseases shall be service connected even though there is no record of such disease during service. For the purposes of this section, 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 U.S.C. § 1116 ; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. While the Board recognizes that neither hypertension nor basal cell carcinoma are diseases for which presumptive service connection is granted, this does not preclude service connection as secondary to herbicide exposure on a direct basis if a medical nexus can be established. 1. Entitlement to service connection for hypertension The Veteran contends that his hypertension is related to his active duty service, to include as due to acknowledged exposure to herbicide agents. In this case, a current diagnosis for hypertension is of record. Additionally, the Veteran's exposure to herbicide agents is acknowledged as a result of his documented service in the Republic of Vietnam. To date, the RO has denied the claim on the basis that hypertension is not a presumptive disability secondary to herbicide exposure. In October 2018, the Board remanded this matter for a VA examination and etiology opinion to address whether the Veteran's hypertension had its onset during service or was in any other way causally related to his active service, including his acknowledged exposure to herbicide agents. In July 2019, a VA examiner opined that the Veteran's hypertension was less likely than not related to his active duty service. The examiner's rationale was that a review of the Veteran's service treatment records (STRs) showed no documented diagnosis of hypertension or elevated blood pressure during service. However, no STRs have been associated with the Veteran's claims file. Indeed, a March 2021 VA formal memorandum describes attempts to obtain this Veteran's STRs, finding that all efforts were exhausted and any further attempts would be futile. While military personnel records are part of the Veteran's file, there are no in-service medical records available for review and, therefore, the Board finds the July 2019 medical opinion to be of little probative value. In November 2020, a different VA examiner opined that the Veteran's hypertension is related to his service, particularly his herbicide exposure. In support of this opinion, the examiner referred to the Veteran's medical history and stated that because the Veteran did not have hypertension issues prior to service, and he has a current diagnosis of hypertension, and he was exposed to herbicide agents, a reasonable medical nexus exists. Thus, the examiner concludes, a nexus has been established. The RO subsequently denied the claim because hypertension is not one of the presumptive conditions noted due to exposure to herbicide agents and was not diagnosed until 2000, so did not manifest to a compensable degree within one year of separation. Upon review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hypertension is related to his in-service herbicide exposure. In this regard, VA has been given the opportunity to obtain multiple VA examinations. While a negative opinion was offered in July 2019, as discussed above, its rationale referred to medical evidence which is not available and not of record, and therefore is of limited to no probative value in assessing the claim. The November 2020 opinion favors service connection. While it is not the most detailed opinion, it clearly was made in contemplation of the Veteran's complete medical history, and applied the facts of the case to known medical principles. As such, the Board will assign it some probative weight. VA has sought and obtained two medical opinions in this matter. The Board finds that the second opinion is slightly more persuasive than the first, which relied on facts not in evidence. As such, the evidence is at least in equipoise as to whether the Veteran's hypertension is etiologically related to his herbicide exposure, if not in in favor of a positive nexus, and the Board will not further prejudice the Veteran by remanding this appeal for an additional examination and opinion. Under the benefit of the doubt standard established by Congress, when the evidence is in relative equipoise, the law dictates the Veteran prevails. See 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The claim is granted. 2. Entitlement to service connection for right ear skin cancer The Veteran contends that his right ear skin cancer is related to his active duty service, to include as due to acknowledged exposure to herbicide agents. In this case, a current diagnosis for basal cell carcinoma of the right ear is of record. Additionally, the Veteran's exposure to herbicide agents is acknowledged as a result of his documented service in the Republic of Vietnam. To date, the RO has denied the claim on the basis that basal cell carcinoma is not a presumptive disability secondary to herbicide exposure. In October 2018, the Board remanded this matter for a VA examination and etiology opinion to address whether the Veteran's basal cell carcinoma had its onset during service or was in any other way causally related to his active service, including his acknowledged exposure to herbicide agents. In July 2019, a VA examiner opined that the Veteran's skin cancer was less likely than not related to his active duty service. The examiner's rationale was that a review of the Veteran's service treatment records (STRs) showed no documented diagnosis of skin cancer. However, no STRs have been associated with the Veteran's claims file. Indeed, a March 2021 VA formal memorandum describes attempts to obtain this Veteran's STRs, finding that all efforts were exhausted and any further attempts would be futile. While military personnel records are part of the Veteran's file, there are no in-service medical records available for review and, therefore, the Board finds the July 2019 medical opinion to be of little probative value. In November 2020, a different VA examiner opined that the Veteran's basal cell carcinoma is at least as likely as not related to his service, particularly his herbicide exposure. In support of this opinion, the examiner referred to the Veteran's medical history and stated that because the Veteran did not have skin cancer prior to service, and he has a current diagnosis of basal cell carcinoma, and he was exposed to herbicide agents, a reasonable medical nexus exists. Thus, the examiner concludes, a nexus has been established. The RO subsequently denied the claim because carcinoma is not one of the presumptive conditions noted due to exposure to herbicide agents. Upon review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's basal cell carcinoma is related to his in-service herbicide exposure. In this regard, VA has been given the opportunity to obtain multiple VA examinations. While a negative opinion was offered in July 2019, as discussed above, its rationale referred to medical evidence which is not available and not of record, and therefore is of limited to no probative value in assessing the claim. The November 2020 opinion favors service connection. While it is not the most detailed opinion, it clearly was made in contemplation of the Veteran's complete medical history, and applied the facts of the case to known medical principles. As such, the Board will assign it some probative weight. (Continued on the next page) VA has sought and obtained two medical opinions in this matter. The Board finds that the second opinion is slightly more persuasive than the first, which relied on facts not in evidence. As such, the evidence is at least in equipoise as to whether the Veteran's basal cell carcinoma of the ear is etiologically related to his herbicide exposure, if not in in favor of a positive nexus, and the Board will not further prejudice the Veteran by remanding this appeal for an additional examination and opinion. Under the benefit of the doubt standard established by Congress, when the evidence is in relative equipoise, the law dictates the Veteran prevails. See 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The claim is granted. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.