Citation Nr: 22018049 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 15-35 013 DATE: March 28, 2022 ORDER Entitlement to service connection for an immune deficiency with shortages in immunoglobulin M (IgM), to include as due to exposure to herbicides, is denied. Entitlement to service connection for residuals of resection of intestines and sphincter, to include as due to exposure to herbicides, is denied. Entitlement to service connection for a skin disorder (other than herpes simplex, now claimed as neoplasms), to include as due to exposure to herbicides, is remanded. is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents in service. 2. The Veteran's immune deficiency with shortages in IgM is a developmental defect not subject to compensation within the meaning of applicable legislation; there was no superimposed disease or injury, including exposure to herbicide agents, during service which created additional chronic disability. 3. A disorder resulting in resection of the Veteran's intestines and sphincter, performed years after his military service, did not manifest during service and is unrelated to any inservice injury, disease, or event, including exposure to herbicide agents; he has not established service connection for immune deficiency with shortages in IgM. 4. The Veteran does not have a skin disorder (other than herpes simplex), claimed as neoplasms, related to any inservice injury, disease, or event, including exposure to herbicide agents; he has not established service connection for immune deficiency with shortages in IgM. CONCLUSIONS OF LAW 1. The criteria for service connection for immune deficiency with shortages in IgM, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a disorder resulting in resection of the Veteran's intestines and sphincter, to include as due to exposure to herbicide agents, have not been met; the claim of service connection for such disability as secondary to immune deficiency with shortages in IgM lacks legal merit. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303,3.307, 3.309, 3.310. 3. The criteria for service connection for a skin disorder (other than herpes simplex), claimed as neoplasms, to include as due to exposure to herbicide agents, have not been met; the claim of service connection for such disability as secondary to immune deficiency with shortages in IgM lacks legal merit. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303,3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to November 1973, with service in the Republic of Vietnam from June 1971 to June 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ). In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for an additional 60 days for the Veteran to submit additional evidence. He waived RO consideration of any additional evidence added to his file. The appeal was remanded in April 2019 for additional development, to include affording the Veteran VA examinations and obtaining medical nexus opinions. Although the Veteran attended a January 2020 VA infectious disease examination, in connection with the immune deficiency with shortages in IgM claim, and a report of this examination and opinion are part of the record; examinations in connection with the claims for residuals of resection of intestines and sphincter and a skin disorder have not been completed. The record includes a June 2021 VA Form 27-0820, Report of General Information, which notes that he was contacted to schedule the appointment but "the Veteran got frustrated said cancel and abruptly hung up;" a follow-up contact to verify the Veteran's intent to cancel was planned. A subsequent Exam Scheduling Request Modification notes the exam scheduling request was cancelled at the Veteran's request. An Exam Scheduling Request Clarification Response clarifies that the "Veteran stated he does not wish to be scheduled and wants us to stop contacting him." Under these circumstances, the Board finds that the Veteran's refusal to report for necessary examinations was without good cause and frustrated VA's attempt to fulfill its duty to assist. As further remand would be futile and as the duty to assist is not a one-way street, the Board finds that there has been substantial compliance with the April 2019 remand instructions because the AOJ attempted to schedule the Veteran for the examinations to assist in the development of his claims. See Stegall v. West, 11 Vet. App. 268 (1998); Wood v. Derwinski, 1 Vet. App. 190 (1991). Under these circumstances, the claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). To establish a right to compensation for a present disability, the evidence 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). As to herbicide exposure, 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 from June 1971 to June 1972. Thus, exposure to herbicides is presumed. 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 disabilities diagnosed during the appeal period are not listed among the enumerated diseases presumptively related to herbicide exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 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). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 3838 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims his IgM deficiency is the result of his active duty service, including exposure to Agent Orange while serving in Vietnam, and that this IgM deficiency has resulted in a skin disorder (other than herpes simplex) and infection which required resection of his intestines and sphincter. Alternatively, the Veteran claims his skin disorder (other than herpes simplex) and infection requiring resection of his intestines and sphincter is directly related to his active duty service, including Agent Orange exposure therein. See, e.g., Veteran's statement received in November 2014; September 2015 VA Form 9, Appeal to Board of Veterans' Appeals, and attached statement; and October 2018 Board hearing transcript. None of the Veteran's claimed disorders are presumptively linked to in-service Agent Orange Exposure. See 38 C.F.R. § 3.309(e). However, as noted above, where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Below, the Board will discuss consideration for direct service connection. 1. Immune Deficiency with Shortages in IgM Generally, congenital and hereditary disabilities are not deemed diseases or injuries for VA purposes but, under certain circumstances, service connection may be granted for such disorders if they are shown to have been aggravated during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In a precedential opinion, VA's General Counsel indicated that, for service connection purposes, there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect." Congenital diseases may be service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. For VA purposes, a congenital defect is a static disability, whereas a congenital disease is capable of improving or deteriorating. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In addition, service connection may be granted for hereditary diseases which either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service. VAOPGCPREC 67-90. The Veteran's service treatment records (STRs) are silent as to findings of immune deficiency with shortages in IgM, including his October 1970 enlistment and July 1973 separation examinations, which show no notation of immune deficiency with shortages in IgM. Thus, he is presumed sound at entrance. The first notation in the clinical records of immune deficiency with shortages in IgM is not until the Veteran's July 1977 VA examination report, over 4 years after separation from service, which includes a diagnosis of "mild IgM deficiency." Subsequent post-service VA and private treatment records note findings of IgM deficiency and a November 2014 VA treatment report notes it was emphasized to the Veteran that IgM deficiency is a "genetic disorder." A January 2020 VA infectious disease examination report shows a diagnosis of IgM deficiency and reflects a detailed medical history based on interview of the Veteran and review of his claims file. After consideration of the Veteran's medical history and review of the relevant medical literature, the examiner opined: (1) The Veteran's IgM deficiency is less likely than not related to service because there is no evidence to support the finding that IgM deficiency occurred during service. The examiner noted that the Veteran's STRs, including his entrance and separation examinations, are silent for IgM and that the first notation of IgM deficiency was the finding of "mild IgM deficiency" in the 1997 VA examination. The examiner further explained that "[t]here is no evidence of immunodeficiency. Diagnosis of selective IgM deficiency was not made until around 2013 or 14 [by his treatment providers] many years after exposure to agent orange in Vietnam." (2) IgM deficiency is not a congenital defect or disease because congenital diseases/defects are those that are evident at birth or early infancy and there is no evidence that this defect was present at birth or early infancy. Rather, it did not become evident until his adulthood. (3) IgM deficiency fits under the category of a developmental defect which developed in the Veteran in adulthood. It is a defect because, "[a]lthough little is known about the IgM deficiency, current literature does not indicate that it will improve or deteriorate." (4) There was no superimposed disease or injury in service that resulted in additional disability such as frequent infections and or rashes and boils because IgM deficiency was not shown in service or until many years after the Veteran's separation from military service. As such, it did not contribute to any in-service infections, rashes or boils. (5) There is no evidence the Veteran's IgM deficiency preexisted service. (6) Referring to the relevant medical literature, the examiner opined that IgM is not associated with Agent Orange because "[c]urrent literature does not support the [V]eteran's IgM deficiency is caused by Agent Orange." After review of the claims file and consideration of the Veteran's competent assertions in support of his claim, the Board finds the evidence is persuasively against a finding that the Veteran's immune deficiency with shortages in IgM is etiologically related to his active service and Agent Orange exposure therein. The Board finds the opinions by the January 2020 VA examiner to be probative evidence in the matter and persuasive. The provider expressed familiarity with the Veteran's record and his Agent Orange exposure in service and provided a detailed explanation for the opinions against the claim (that IgM deficiency was not initially shown until many years after service and is unrelated to Agent Orange). The VA examiner provider is a medical professional, and is competent to offer the opinions, and the opinions reflect a familiarity with the Veteran's entire record and include rationale that cites to both supporting factual data and medical principles. The opinion is probative evidence in the matter and persuasive. In addition, the January 2020 examiner opined that the Veteran's IgM deficiency is a development defect. As noted above, a developmental defect itself is not subject to service connection, as this is precluded under VA law unless another condition is superimposed upon it. See 38 C.F.R. §§ 3.303(c), 4.9. The opinion of the January 2020 VA examiner was that the Veteran's IgM, which was not shown prior to or during service, initially manifested in adulthood, and there was no superimposed disease or injury in service that resulted in additional disability such as frequent infections and or rashes and boils. The examiner explained that IgM deficiency was not shown in service or until many years after the Veteran's separation from military service. This opinion is probative and persuasive evidence that no additional condition was superimposed upon the developmental defect by the Veteran's military service. In support of his claim, the Veteran has submitted multiple scientific studies assessing the health effects of Agent Orange exposure and the immune system. Medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, medical articles tend to be general in nature and do not relate to the specific facts in a given claim. The scientific articles submitted by the Veteran provide general information without a specific connection to the details of his complaints and symptoms. The articles are not combined with an opinion of a medical professional. As such, they are less probative and persuasive with respect to the issue of whether his immune deficiency with shortages in IgM is related to service, to include Agent Orange exposure. The Board notes the Veteran's sincere belief that his immune deficiency with shortages in IgM is related to his exposure to herbicide agents in service; however, he is a layperson, and therefore not competent to provide a probative opinion regarding the nature and etiology of a medically complex finding, such as IgM deficiency. Considering the forgoing, the Board finds the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable, and service connection for immune deficiency with shortages in IgM is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Resection of Intestines and Sphincter 3. Skin Disorder (Other Than Herpes Simplex, Now Claimed as Neoplasms) It is not in dispute that the Veteran served in Vietnam and was exposed to Agent Orange in the course of such service. It is also not in dispute that the Veteran underwent a right colectomy in April 1975 for symptoms associated with "chronic active ulceration of ilgo-cecal valva, inflammatory in type, non-specific," has competently reported experiencing ongoing gastrointestinal symptoms, and that his VA and private treatment records include findings of basal cell carcinoma, squamous cell carcinoma, and epidermal inclusion cyst during the appeal period. As such, what remains necessary to establish service connection for resection of intestines and sphincter is competent evidence that this surgical procedure was the result of the Veteran's service/events therein, to include Agent Orange exposure, and, if so, what residuals of the surgery are currently manifested. See Shedden, supra. Similarly, what remains necessary to establish service connection for a skin disorder (other than herpes simplex, for which service connection is already established), is competent evidence that the skin disorders diagnosed during the appeal period (including basal cell carcinoma, squamous cell carcinoma, and epidermal inclusion cyst), other than herpes simplex, are related to the Veteran's service/events therein, to include Agent Orange exposure. Id. In this regard, it is noteworthy that the only skin disability currently recognized as associated with exposure to Agent Orange is chloracne, which has not been diagnosed during the appeal period. See 38 C.F.R. § 3.309(e). In support of his claim, the Veteran has submitted multiple scientific studies assessing the health effects of Agent Orange exposure and digestive function. As discussed above, medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). The scientific articles submitted by the Veteran provide general information without a specific connection to the details of his complaints and symptoms and are not combined with an opinion of a medical professional. As such, they are of little probative or persuasive value with respect to the issue of whether his resection of intestines and sphincter was the result of his service, to include Agent Orange exposure. The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing observable symptoms such as gastrointestinal discomfort and skin lesions). Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as a lay person, he is not competent, by his own opinion, to relate a specific skin disorder or the illness resulting in the resection of his intestines and sphincter to herbicide exposure in service or other etiology. Such finding is a medical question beyond the scope of lay observation, and requires medical expertise. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). The Veteran lacks such expertise. As discussed above, the April 2019 Board remand ordered VA examinations to address the remaining unmet elements of service connection; however, as the Veteran did not cooperate with the scheduling of these examinations and "stated he does not wish to be scheduled and wants us to stop contacting him," the claims must be decided based on the evidence of record, which does not include persuasive evidence in support of the Veteran's claims. See 38 C.F.R. § 3.655(b). The Veteran has also argued that his skin disorders (other than herpes simplex) and the infection which resulted in his resection of intestines and sphincter were caused by his immune deficiency with shortages in IgM. See, e.g., October 2018 Board hearing transcript. Inasmuch as service connection for immune deficiency with shortages in IgM is denied in the above decision, a threshold legal requirement for establishing secondary service connection is not met, i.e., it is not shown that the primary disorder (immune deficiency with shortages in IgM) alleged to have resulted in the resection of intestines and sphincter and skin disorders for which secondary service connection is sought is service-connected. Accordingly, service connection for skin disorder, other than herpes simplex, and residuals of resection of intestines and sphincter as secondary to immune deficiency with shortages in IgM is legally insufficient, and must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for residuals of resection of intestines and sphincter and a skin disorder, other than herpes simplex, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is grateful for the Veteran's honorable service and regrets that a more favorable outcome could not be reached. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.