Citation Nr: 23011069 Decision Date: 02/22/23 Archive Date: 02/22/23 DOCKET NO. 16-47 462 DATE: February 22, 2023 ORDER Entitlement to service connection for a skin condition, to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to service connection for an eye condition, to include as secondary to service-connected COPD, is remanded. Entitlement to service connection for a dental condition, to include as secondary to service-connected COPD, is remanded. FINDING OF FACT The Veteran does not have a skin condition that is related to an in-service event, injury, or disease, to include herbicide agent or other environmental exposures. CONCLUSION OF LAW The criteria for service connection for a skin condition have not been satisfied. 38 U.S.C. § 1110, 1112, 1116, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to June 1969, to include service in the republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. The issues were previously before the Board in April 2020 and February 2022, where they were remanded for additional development. The Board notes that the issue of entitlement to service connection for chronic obstructive pulmonary disease was also before the Board in February 2022. The RO has recently granted that claim and it is no longer on appeal. The remaining claims now return for further appellate review. Service Connection for a Skin Condition Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Veteran is seeking service connection for a skin condition. VA examinations during the appeal have diagnosed the Veteran with basal cell carcinoma, seborrheic dermatitis, and actinic keratosis. While the Veteran's service treatment records (STRs) are absent any skin condition, he contends that in-service exposure to herbicides caused his current skin condition. The Board notes that the Veteran's herbicide exposure was conceded with his service in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran also contends that he had heavy exposures to paint thinners, acetone, methyl ethyl keytone, aluminum and magnesium fillings while working as an air frame repairman, which affected his skin. See September 2016 VA Form 9; see also DD Form 214 noting the Veteran's military occupational specialty as an air frame repairman). The Veteran underwent a VA examination for skin diseases in July 2020. The July 2020 examiner noted the Veteran's current carcinoma diagnosis but noted, in opining in the negative as to whether there is a relationship between a current skin condition and service, that records do not show that the Veteran had a skin condition during active service and his current condition is not listed under the list of presumptive diseases for herbicide exposure. As the Board noted in its last remand, however, the mere fact that a condition is not presumed by VA to have been caused by herbicide exposure is not, in and of itself, a sufficient basis to deny service connection for the condition. See Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Thus, a VA opinion that relies only on whether a claimed disease is on the presumptive list is not sufficient to render an informed decision as to whether a relationship may nevertheless exist between the Veteran's disorder and herbicide exposure. See Polovick, 23 Vet. App. at 55. Instead, the opinion should explain why any statistical or medical studies are found to be persuasive or unpersuasive and should address whether there are other risk factors that might be the cause of the Veteran's claimed conditions or whether the claimed conditions manifested in an unusual manner. Id. As such, an additional VA skin examination was afforded in July 2022 and an additional medical opinion was provided in October 2022. The examiner again provided a negative opinion that, based on a review of the evidence, including specifically the previous VA examinations and the Board's last remand, the Veteran's current skin conditions, which did not occur until many years post service are not related to his service, to include his conceded herbicide exposure and/or heavy exposures to paint thinners, acetone, methyl ethyl keytone, aluminum and magnesium fillings. The examiner explained that basal cell carcinoma and actinic keratosis are due to sun damaged skin and "have no known clinical correlation with herbicides of the other listed heavy exposures." Further, the examiner noted that seborrheic dermatitis, also known as dandruff, is "likely due to an underlying, unknown skin irritation or response," with "no known or accepted relationship with herbicide or any of the other listed heavy exposures." The Board finds the above opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is also no other medical opinion or competent and credible evidence in significant conflict with the above VA medical opinion. The Board has considered the Veteran's statements, to include his assertions that his skin conditions are related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., visible skin abnormalities; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's claim for service connected for a skin condition is warranted. Rather, the evidence persuasively weighs against such a finding. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND While the Board regrets further delay, the Veteran's remaining claims must be remanded for additional development. 1. Entitlement to service connection for en eye condition. The Veteran is seeking service connection for an eye condition and contends that his current condition is secondary to treatments for COPD. 38 C.F.R. § 3.310. VA examinations in October 2020 and July 2022 diagnosed the Veteran with pseudophakia, retinal hole with repair, floaters, and dry eye syndrome. In a July 2022 opinion and September 2022 addendum, while an examiner provided negative secondary service connection opinions, it was only noted that the Veteran's eye conditions are "all conditions that occur with or without COPD." The examiner did not provide an opinion on aggravation, i.e., whether the Veteran's COPD treatment may have aggravated any of his eye conditions. While the examiner did state that COPD medications "may exacerbate dry eye symptoms," nothing further was provided specific to this Veteran. As such, an additional opinion is necessary. 2. Entitlement to service connection for a dental condition. The Veteran is seeking service connection for a dental condition. VA examinations during the appeal have diagnosed the Veteran with loss of several teeth with bone loss that he contends is due to his COPD medication; specifically, that he has been taking COPD medication since around 1996 or 1997, which resulted in dry mouth, and his teeth then began deteriorating in early 2000. The Veteran underwent a VA dental conditions examination in September 2020. The examiner indicated that the Veteran's loss of teeth appear to stem from cavities, which "can definitely arise from dry mouth. However, the examiner continued, poor oral hygiene and dietary habits can also cause dental cavities. Ultimately, the examiner found it "difficult to deduce" whether it was more likely that the Veteran's COPD medications (Spiriva and Albuterol) caused dry mouth and resultant cavities, than simple poor oral hygiene or dietary contributions. While the examiner further opined that his COPD medications could have led to an aggravation of the Veteran's cavities and subsequent tooth loss, this opinion appears to be purely speculative. Subsequent to the Board's last remand and the RO's grant of the Veteran's service connection claim for COPD, an additional examination and opinion were provided in August 2022. However, the examiner, in providing a negative opinion, simply stated that the Veteran's dental issues were related to a lack of oral hygiene and care, with nothing further. The examiner also did not expand on the previous examiner's indication that the Veteran's COPD treatment may have resulted in dry mouth and at least aggravated his tooth decay. As such, an additional opinion is necessary. The matter is therefore REMANDED for the following actions: 1. Ask the Veteran to identify any outstanding treatment records relevant to his eye condition claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After any records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to the medical probability that any current eye condition was (a) caused or (b) aggravated by the Veteran's COPD, including its treatments. The examiner's attention is directed to the conditions that have been diagnosed during the appeal, including pseudophakia, retinal hole with repair, floaters, and dry eye syndrome, and the previous VA examiner's suggestion that the Veteran's COPD medications may exacerbate dry eye symptoms. The need for an additional physical examination is left to the discretion of the examiner. A complete rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. After any records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to the medical probability that any current dental condition was (a) caused or (b) aggravated by the Veteran's COPD, including its treatments. The examiner's attention is directed to the VA medical opinions of record that indicate that the Veteran's COPD medications may have caused dry mouth and contributed to his tooth decay. The need for an additional physical examination is left to the discretion of the examiner. A complete rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.