Citation Nr: 22015753 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 16-42 569 DATE: March 18, 2022 ORDER Entitlement to service connection for a high blood pressure disability is denied. Entitlement to service connection for retroperitoneal fibrosis is denied. Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for a skin disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The weight of the competent and credible evidence is against finding that the Veteran has had a diagnosis of hypertension or a chronic high blood pressure disability at any time during the period on appeal. 2. The Veteran's retroperitoneal fibrosis did not have its onset during service and is not otherwise related to service, to include exposure to herbicides. 3. The Veteran's back mass did not have its onset during service and is not otherwise related to service, to include exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for retroperitoneal fibrosis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a back mass have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1966 to October 1968 including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeal (Board) on appeal from December 2014 and April 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded these issues to the RO for additional development. The case has returned to the Board. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § § 3.307. The Veteran served in the Republic of Vietnam during the applicable time period. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § §§ 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. § §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -7641 (2003). Notwithstanding the foregoing, regulations also provide that 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). 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). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a high blood pressure disability The Veteran contends that he is entitled to service connection for a high blood pressure disability. The question for the Board is whether the Veteran has a current hypertension disability for VA purposes, then if so, if such is related to an in-service event, injury or illness. Blood pressure measurements are expressed as diastolic divided by systolic pressure in mmHg. For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran submitted a claim for entitlement to service connection for high blood pressure in September 2014. He reported that he was diagnosed with high blood pressure in 2012. September 2013 VA treatment records reflect that the Veteran did not have a history of hypertension. VA treatment notes specifically state that the Veteran did not have hypertension in November 2015 and July 2016. June 2018 VA treatment reflects that the Veteran's blood pressure was usually controlled and noted as 148/80 during the visit. July 2019, January 2020, and July 2020 VA treatment records reflect that the Veteran had elevated blood pressure without a diagnosis of hypertension. The Veteran attended a VA examination in December 2020. He told the examiner that he did not have hypertension and had never been diagnosed with hypertension. He denied taking any medication to treat hypertension. He did not have a history of a diastolic blood pressure elevation to predominately 100 or more. Although the examiner noted three measurements on the day of the examination that showed all with diastolic pressure greater than 90 mmHg, the examiner concluded that the Veteran's examination results and medical records did not support a diagnosis of hypertension. VA outpatient treatment records through February 2021 continue to list "finding of increased blood pressure" without a diagnosis of hypertension. A review of the Veteran's post-service medical treatment records does not reflect a current diagnosis of hypertension or a chronic high blood pressure disability. Although occurrences of elevated blood pressure are noted, the Veteran does not have a diagnosis of hypertension. The Board concludes that the Veteran does not have a current high blood pressure or hypertension disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); McKinney v. McDonald, 28 Vet. App. 15 (2016); 38 C.F.R. § 3.303 (a), (d). Under 38 U.S.C. § 1110, there must be a disability due to an identified personal injury suffered or disease or injury, contracted in-service. With respect to the Veteran's general assertions that he has high blood pressure, although lay persons are competent to provide opinions on some medical issues, determining a diagnosis for the nature and etiology of such a condition falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report symptoms of high blood pressure, any opinion regarding the diagnosis of those symptoms requires medical expertise that the Veteran has not demonstrated. See Jandreau, 492 F. 3d at 1376. Because the Veteran does not have a high blood pressure disability, the evidence is persuasively against the Veteran's claim for entitlement to service connection for high blood pressure, and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Accordingly, the claim for entitlement to service connection for a high blood pressure disability is denied. 2. Entitlement to service connection for retroperitoneal fibrosis The Veteran contends his retroperitoneal fibrosis related to his active service and exposure to herbicides. Service treatment records (STRs) are associated with the claims file and do not reflect complaints of or manifestations of retroperitoneal fibrosis. Upon his separation examination in October 1968, the Veteran's abdomen was determined to be normal. On the corresponding self-completed report of medical history form, the Veteran explicitly denied stomach trouble, high or low blood pressure, blood in urine, or back trouble. The Veteran underwent a CT of the abdomen in July 2013 and a corresponding medical note stated that the Veteran had probable retroperitoneal fibrosis. During August 2013 VA treatment, it was noted that the etiology of the Veteran's retroperitoneal fibrosis was unclear, but it was likely idiopathic. April 2014 VA treatment records reveal that the Veteran was diagnosed with retroperitoneal fibrosis. The Veteran submitted a claim for entitlement to service connection for retroperitoneal fibrosis in September 2014. The Veteran attended a VA examination in December 2020. The examiner noted that the Veteran was a "poor historian" and was not aware of his retroperitoneal fibrosis condition despite receiving extensive treatment. The Veteran denied any abdominal pain, nausea, vomiting, diarrhea, constipation, decrease appetite, or weight loss. Following an examination and a review of the claims file, the examiner determined that the Veteran's retroperitoneal fibrosis was less likely than not related to his service. He explained that retroperitoneal fibrosis was not diagnosed until 2012, or 44 years following discharge. Furthermore, the nature and etiology of retroperitoneal fibrosis is unknown. As to the Veteran's contentions that retroperitoneal fibrosis is related to service, he certainly can attest to factual matters of which he has first-hand knowledge, such as experiencing stomach pain, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran's lack of demonstrated medical expertise and the complexity of linking retroperitoneal fibrosis to service or exposure to Agent Orange, the Board concludes that in this case his statements regarding any such link between the in-service exposures and retroperitoneal fibrosis are significantly less probative than the conclusion of the medical professional of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not provided any probative evidence to support a relationship between retroperitoneal fibrosis and exposure to herbicides, nor is there any medical opinion in the claims file to support his contentions. There is no reliable evidence linking the Veteran's retroperitoneal fibrosis to service. Relevant symptoms, complaints, treatment, or diagnoses were not noted in service. The contemporaneous records establish that the relevant systems were normal at separation. The more probative evidence establishes that he did not have characteristic manifestations during service. The evidence is persuasively against the Veteran's claim for entitlement to service connection for retroperitoneal fibrosis, and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Accordingly, the claim for entitlement to service connection for retroperitoneal fibrosis is denied. 3. Entitlement to service connection for a back disability The Veteran contends that he is entitled to service connection for a back disability. More specifically, the Veteran contends that a large lump on his back is related to his service. STRs do not reflect complaints of or manifestations of any lesions, cysts or lumps on the back. Upon his separation examination in October 1968, the Veteran's spine and skin were determined to be normal and no identifying body marks were noted. On the corresponding self-completed report of medical history form, the Veteran explicitly denied back trouble or any kind, deformities, or any tumors or cysts. June 1994 VA treatment reflects lesions on the lower part of his body. No masses were noted on his back. A soft mass in the midline back was noted during May 2012 VA treatment. November 2013 and August 2014 VA treatment records refect that the Veteran had a back lesion which was likely benign lipoma. The Veteran submitted a claim for entitlement to service connection for a large mass on the left side of his back in September 2014. The Veteran attended a VA examination in December 2020. He stated that he developed a soft mass on his back about 20-30 years prior. Following an examination and a review of the claims file, the examiner determined that the Veteran's back mass was less likely than not related to his service. He explained that back mass not noted in service and did not develop until many years following discharge. As to the Veteran's contentions that his back mass is related to service, he can attest to experiencing the back mass, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, given the Veteran's lack of demonstrated medical expertise and the complexity of linking a back mass to service or exposure to Agent Orange, the Board concludes that in this case his statements regarding any such link between the in-service exposures and a back mass are significantly less probative than the conclusion of the medical professional of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not provided any probative evidence to support a relationship between the back mass and exposure to herbicides, nor is there any medical opinion in the claims file to support his contentions. There is no reliable evidence linking the Veteran's back mass to service. Relevant symptoms, complaints, treatment, or diagnoses were not noted in service. The contemporaneous records establish that the relevant systems were normal at separation. The more probative evidence establishes that he did not have characteristic manifestations during service. The evidence is persuasively against the Veteran's claim for entitlement to service connection for a back mass, and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Accordingly, the claim for entitlement to service connection for a back mass is denied. REASONS FOR REMAND 4. Entitlement to service connection for a skin disability The Veteran contends he currently has a skin disorder as a result of his military service. He has stated his skin disorder started in service (direct service connection), and he has contended it is the result of exposure to Agent Orange (presumptive service connection). The Veteran's medical history has included assessments of hyperkeratosis (June 1994), an unknown skin disease (June 2012), and folliculitis with post-inflammatory hyperpigmentation (November 2013). Notably, the Veteran's claim for chloracne was denied in March 2009, in part, due to a lack of medical evidence of record showing a diagnosis of chloracne. Furthermore, the RO noted the Veteran's service treatment records showed no treatment for a skin condition. Despite that finding, the Board observes the Veteran's STRs note a record of severe blisters in November 1967. In June 1994 while receiving treatment, the Veteran recalled he developed a skin condition after he returned from Vietnam. In a January 2008 statement, the Veteran stated he experienced a breakout of puss-filled lesions on his body less than a year after his discharge from active duty. In another statement from March 2008, the Veteran recalled how after leaving Vietnam in October 1968 in the late summer or early fall 1969, he broke out with bumps all over his body. He also noted he lost some body hair. His father took him to the VA hospital in Chicago, and he was treated. In May 2012 while receiving treatment at the VA, the Veteran recalled developing a skin problem when he returned from Vietnam. He further stated he had been seen by the VA in Chicago during that time for his skin condition. He also stated that those records had been lost, and he does not recall the diagnosis. In an April 2014 statement, the Veteran's brother recalled how in the summer of 1969 he clearly remembers his brother's physical condition after returning from Vietnam. He recalls how his brother's body was covered with pus-filled bumps and how their mother worked to resolve the condition with home treatments. In a May 2014 statement, the Veteran's sister also recalled her brother's physical condition from the summer of 1969. She recalled the same pus-filled bumps on her brother's skin. She remembered how she thought her brother's skin condition was contagious, and she did not want to bathe in the same tub as her brother. In another May 2014 statement, another brother of the Veteran recalled how, during the summer of 1969, the Veteran's skin developed blackheads, blisters, and scales. He also noted his brother's hair fell off his body. He remembered applying a salve to his brother's body that had been prescribed by a doctor. In an October 2017 statement, the Veteran recalled that while in Vietnam, the foliage surrounding his camp was sprayed with an herbicide and that he and the soldiers breathed in the air during and after the spraying event. He recalled how, from that moment on, he had various troubles with losing hair and bumps all over his body. The Veteran also explained he tried to obtain his VA treatment records from the 1960s, however; apparently, they had been lost in a fire. The Veteran attended a VA examination in December 2020. Although the examiner noted that the Veteran had folliculitis in his treatment records, there was no nexus opinion provided. Accordingly, a remand is needed in order to obtain a VA opinion on the etiology of the Veteran's skin conditions. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities Finally, because a decision on the remanded issue of entitlement to service connection for a skin disability could impact a decision on the issue of entitlement to a total disability rating based upon individual unemployability, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claim. 2. Obtain an examination and opinion for the Veteran's skin disability. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. The examiner must identify all current skin disabilities that have been present during the appeal period. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any current skin disability, to include folliculitis, had its clinical onset during active service or is related to any in service disease, event, or injury, to include exposure to an herbicidal agent such as that used in Agent Orange and/or blisters during service. If the examiner determines that the Veteran had chloracne at any time during the period on appeal, he or she is asked to determine whether chloracne manifested within a year of the last exposure to an herbicide agent during service. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is asked to comment on the numerous lay statements provided by the Veteran and his family regarding observed skin symptoms and onset history in any opinion rendered. 3. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claim, to include entitlement to a TDIU rating. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.