Citation Nr: 21041831 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-48 267 DATE: July 10, 2021 ORDER Entitlement to service connection for a bilateral leg condition is denied. Entitlement to service connection for a bilateral foot condition is denied. Entitlement to service connection for a liver condition, to include as due to Agent Orange exposure is denied. Entitlement to service connection for a pancreas condition, to include as due to Agent Orange exposure is denied. Entitlement to service connection for a spleen condition, to include as due to Agent Orange exposure is denied. Entitlement to service connection for skin cancer, to include as due to Agent Orange exposure is denied. Entitlement to service connection for a thyroid condition, to include as due to Agent Orange exposure is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a right leg, bilateral foot, or pancreas disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that a left leg, liver, spleen, skin cancer, or thyroid disability began during active service, or is otherwise related to an in-service injury or disease, to include due to Agent Orange exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral leg, bilateral foot, liver, pancreas, spleen, skin cancer, and a thyroid condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1968 to February 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in November 2018 for further development. The Board finds that substantial compliance has occurred with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for a bilateral leg condition 2. Entitlement to service connection for a bilateral foot condition The Veteran is seeking service connection for a bilateral leg and bilateral foot condition, but notably has not provided an explanation as to why he believes service connection is warranted. The competent evidence of record confirms the Veteran has been diagnosed with a left knee strain. No right leg or bilateral foot disability has been diagnosed. In addition, the Veteran reported he did not have any current foot or ankle issues. See September 2019 VA Examination. The Veteran's service treatment records, including a post-deployment physical and separation examination, contain no complaints, history, or findings consistent with a bilateral foot or bilateral leg condition. See June 1970 and January 1972 Service Treatment Record. Additionally, the Veteran was not shown to have arthritis in either foot or leg in service or within one year following discharge from service. As such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Following service discharge, the Board notes there is little evidence of treatment for, and no diagnosis of, a right leg or bilateral foot disability. See e.g., September 2019 VA Examination. The Veteran was found to have a left knee strain; however, the condition was not diagnosed until 2016. In some cases, the Veteran's own statements provide evidence against the claim. The Veteran reported to the September 2019 VA examiner that he does not have any current feet or ankle issues. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See e.g., Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Accordingly, showing a current disability exists, as well as providing competent evidence linking a current condition to service is needed to substantiate the claim. On VA examination in September 2019, the Veteran reported he began to experience his left knee give away. The Veteran denied any right leg, bilateral ankle, or bilateral foot disability Following a review of the claims file and an examination of the Veteran, the examiner found that the medical evidence of record did not support a current diagnosis of a right leg or bilateral foot disability. In addition, the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's left knee strain was incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the VA examiner's opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinion is consistent with other evidence of record. Moreover, the examiner provided an adequate rationale for the opinion. Accordingly, in this case, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record providing a current bilateral foot or right leg diagnosis nor is there competent evidence linking the Veteran's complaints of a left knee condition to his service. The Board has considered the statements from the Veteran asserting that his claimed left knee condition had onset in service and has occasionally given out. The Veteran is certainly competent to report as to the observable symptoms he experienced and their history, but he cannot diagnose the condition because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The ultimate question in this case is related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. The Board finds that the detailed, reasoned opinion of the VA examiner, as well as the treatment records and, at some points, his own prior statements, has greater probative weight than the more general lay assertions of the Veteran in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided a detailed rationale for the conclusions reached. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim. The Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because nothing in the record shows that the claimed disorders result in functional impairment that affects earning capacity. See Owens, supra. It is important for the Veteran to understand that even if the Board assumed that the Veteran had a bilateral foot or right leg disability, the best evidence in this case would indicate it has no connection with service almost 50 years ago. The best evidence in this case fails to indicate even the existence of a bilateral foot or right leg disability, and even the diagnosed left knee strain was not diagnosed until 2016 (44 years post-service), therefore, there is simply not evidence the Veteran has a chronic problem that he has had for several decades. In summary, there is no competent evidence of arthritis in either foot or leg, or any other disorder in service or within one year following discharge from service. Thus, the provisions regarding continuity of symptomatology are not applicable. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Moreover, the most probative and persuasive evidence is against a finding that his claimed bilateral foot and leg disabilities are related to service. Accordingly, the preponderance of the evidence is against the claims and service connection for bilateral leg and foot disabilities must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for bilateral foot and leg disabilities. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 3. Entitlement to service connection for a pancreas condition, to include as due to Agent Orange exposure The Veteran seeks service condition for a pancreas condition, to include as due to Agent Orange exposure. The Veteran does not have a currently diagnosed pancreas condition. See September 2019 VA Examination. The Veteran's service treatment records, including a post-deployment physical and separation examination, contain no complaints, history, or findings consistent with a pancreas condition. See June 1970 and January 1972 Service Treatment Record. Following service discharge, the Board notes there is no evidence of treatment or a diagnosis of a pancreas condition. See e.g., September 2019 VA Examination. Following a review of the claims file and an examination of the Veteran, the examiner found that the medical evidence of record did not support a current diagnosis of a pancreas condition. The Board has considered the statements from the Veteran asserting that he has a pancreas condition. The Veteran is certainly competent to report as to the observable symptoms he experienced and his history, but he cannot diagnose the condition because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The ultimate question in this case is related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. The Board again finds that the detailed, reasoned opinion of the VA examiner, as well as the treatment records, has greater probative weight than the more general lay assertions of the Veteran in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided a detailed rationale for the conclusions reached. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim. The Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because nothing in the record shows that the claimed disorders result in functional impairment that affects earning capacity. See Owens, supra. Accordingly, the preponderance of the evidence is against the claim and service connection for a pancreas condition must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a pancreas condition. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 4. Entitlement to service connection for a liver condition, to include as due to Agent Orange exposure 5. Entitlement to service connection for a spleen condition, to include as due to Agent Orange exposure 6. Entitlement to service connection for skin cancer, to include as due to Agent Orange exposure 7. Entitlement to service connection for a thyroid condition, to include as due to Agent Orange exposure The Veteran seeks service connection for a liver condition, spleen condition, thyroid condition, and skin cancer due to Agent Orange exposure in service. Unlike the above, the Veteran has current diagnoses of cirrhosis of the liver, basal cell carcinoma, enlarged spleen, thrombocytopenia, and hypothyroidism. See September 2019 VA Examinations. The Veteran's service treatment records, including a post-deployment physical and separation examination, contain no complaints, history, or findings consistent with a liver condition, spleen condition, thyroid condition, or skin cancer. See June 1970 and January 1972 Service Treatment Record. Following service discharge, the Board notes there is again little evidence of treatment of diagnosis or treatment for a thyroid condition until 2014, spleen condition until 2013, liver condition until 2009, and skin cancer until 2008. See e.g., September 2019 VA Examinations. These conditions were not diagnosed until 42, 41, 37, and 36 years post-service. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See e.g., Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Accordingly, showing a current disability exists, as well as providing competent evidence linking a current condition to service is needed to substantiate the claim. To fully address this issue, the Veteran underwent VA examinations for a liver condition, spleen condition, thyroid condition, and skin cancer. Following a review of the claims file and an examination of the Veteran, the examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's liver condition, spleen condition, thyroid condition, or skin cancer was incurred in or caused by the claimed in-service injury, event, or illness, to include Agent Orange exposure. The Board finds the VA examiner's opinion to be highly probative. The opinion was based on a thorough review of the claims file, including the service treatment records and examination of the Veteran, and the opinion is consistent with other evidence of record. Moreover, the examiner provided an adequate rationale for the opinion. Accordingly, in this case, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the Veteran's complaints of a liver condition, spleen condition, thyroid condition, and/or skin cancer to service. The Board has considered the statements from the Veteran asserting that his claimed liver condition, spleen condition, thyroid condition, and/or skin cancer is due to service, including Agent Orange exposure. Again, the Veteran is certainly competent to report as to the observable symptoms he experienced and his history, but he cannot diagnose the condition because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The ultimate question in this case is related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. The Board finds that the detailed, reasoned opinion of the VA examiner, as well as the treatment records has greater probative weight than the more general lay assertions of the Veteran in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided a detailed rationale for the conclusions reached. Accordingly, the preponderance of the evidence is against the claims and service connection for a liver condition, thyroid condition, spleen condition, and skin cancer must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for a liver condition, spleen condition, thyroid condition, and skin cancer. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.