Citation Nr: 18131283
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-43 506
DATE:	August 31, 2018
ORDER
The claim of entitlement to service connection for a back disability is reopened.
Entitlement to service connection for an eye disability is denied.
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to service connection for tinnitus is denied.
Entitlement to service connection for Barrett's esophagus is denied.
Entitlement to service connection for colon polyps is denied.
Entitlement to service connection for irritable bowel syndrome is denied.
Entitlement to service connection for diverticulitis is denied.
Entitlement to service connection for hemorrhoids is denied.
Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied.
REMANDED
Entitlement to service connection for a back disability is denied.
Entitlement to service connection for basal cell skin carcinoma is remanded.
FINDINGS OF FACT
1. The Veteran did not appeal a December 1993 rating decision denying entitlement to service connection for a back disability due, in significant part, to the lack of evidence of a current back disability; evidence received since the December 1993 rating decision is new and material in that it establishes a back disability.
2. The Veteran has eye disabilities including refractive error, mild allergic conjunctivitis, bilateral senile cataracts and nasal pterygium left eye, but not open angle glaucoma; none of the diagnosed eye conditions were caused by or aggravated by the Veteran’s diabetes mellitus.
3. The Veteran’s current hearing loss disability was not incurred in and is not otherwise etiologically related to his active service, to include conceded acoustic trauma.
4. The Veteran’s current tinnitus was not incurred in and is not otherwise etiologically related to his active service, to include conceded acoustic trauma.
5. The Veteran’s disability consisting of Barrett’s esophagus was not incurred in and is not otherwise etiologically related to his active service, to include conceded exposure to herbicide agents.
6. The Veteran does not have, and has not had during the period on appeal, a disability consisting of colon polyps.
7. The Veteran’s current IBS was not incurred in and is not otherwise etiologically related to his active service, to include conceded exposure to herbicide agents.
8. The Veteran’s diverticulitis was not incurred in and is not otherwise etiologically related to his active service, to include conceded exposure to herbicide agents.
9. The Veteran’s hemorrhoids were not incurred in and are not otherwise etiologically related to his active service, to include conceded exposure to herbicide agents.
10. The Veteran’s GERD was not incurred in and is not otherwise etiologically related to his active service, to include conceded exposure to herbicide agents.
CONCLUSIONS OF LAW
1. The December 1993 rating decision is final.  38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017) 
2. The criteria to reopen a claim of entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 5103A, 5108 (West 2014); 38 C.F.R. § 3.156 (2017).
3. The criteria for entitlement to service connection for an eye disability have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017).
4. The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).
5. The criteria for entitlement to service connection for tinnitus have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).
6. The criteria for entitlement to service connection for Barrett's esophagus have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017).
7. The criteria for entitlement to service connection for colon polyps have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017).
8. The criteria for entitlement to service connection for irritable bowel syndrome have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017).
9. The criteria for entitlement to service connection for diverticulitis have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017).
10. The criteria for entitlement to service connection for hemorrhoids have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017).
11. The criteria for entitlement to service connection for GERD have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from July 1968 to July 1970 and from July 1982 to November 1982.
The claims on appeal have been expanded because the Veteran’s claim of entitlement to a back disability was denied in December 1993.  Therefore, the claim currently on appeal is a request to reopen a claim of entitlement to service connection for a back disability based on new and material evidence.  Despite the characterization below, the RO did not adjudicate the service connection claim on the merits, but denied reopening.  Because the matter is reopened, the claim of entitlement to service connection is also before the Board but must be remanded.
The July 2018 Written Brief Presentation from the Veteran’s representative also listed claims of entitlement to service connection for hypertensive vascular disease (hypertension) and penile deformity (erectile dysfunction).  However, those issues are not on appeal.  The Veteran’s hypertension and erectile dysfunction were already service-connected at a non-compensable rate as secondary to the Veteran’s diabetes mellitus.  See July 2016 Rating Decision.  Although the Veteran did disagree with the initial denials of service connection, once they were granted, the issues were removed from appellate review.  These issues were not included in the July 2016 Statement of the Case.  The Veteran did not file a notice of disagreement with the initial zero percent ratings.  He was provided VA’s standardized notice of disagreement form (and he clearly knows that is the proper form to use as he previously submitted several NODs in 2015 on this form), but he did not disagree with the ratings assigned.  While he stated in his VA Form 9 that he believed he should get higher ratings, that cannot be a NOD as it is not on the standardized form.  Those statements on his VA Form 9 also cannot serve as claims since they are not on VA’s standardized claims form.  He is free to file formal claims with VA using the proper form if he wishes to do so.
The Veteran has not requested a Board hearing on the above-referenced claims.
1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a back disability
The Veteran filed an initial claim of entitlement to service connection for back disability in February 1989.  That claim was denied on the merits in a December 1993 rating decision due to lack of evidence on each of the elements of the claim.  The Veteran did not appeal that determination or submit new and material evidence within one year, so it became final.
A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  See Shade v. Shinseki, 24 Vet. App. 110, 113 (2010).  Evidence is “new and material” if it (1) has not been previously submitted to agency decision makers; (2) relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time of the last prior final denial of the claim sought to be opened; and (4) raises a reasonably possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
After the most recent, final decision on the merits, the record contains new and material evidence including additional allegations by the Veteran (particularly with respect to an injury during military training at Fort Benning, Georgia) and medical records establishing a current back disability.  See July 2015 Notice of Disagreement.
The evidence is new in that it is not cumulative or redundant of previous evidence and, if believed, is sufficient to create a reasonable possibility of substantiating his claim.  In making this determination, the Board must presume that newly submitted evidence is credible.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The evidence described above is enough to reopen under the low threshold of Shade.  The claim of entitlement to service connection for a back disability is reopened.
Service Connection
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
Further, where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  The Veteran’s claimed conditions of basal skin carcinoma, sensorineural hearing loss, and tinnitus are included in the list of chronic diseases.  See 38 C.F.R. § 3.309(a).  Therefore, the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology apply to these claims and will be discussed below.
The rest of his claimed conditions are not encompassed by the list of chronic diseases.  See 38 C.F.R. § 3.309(a).  Therefore, the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply to those claims.
In addition, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service.  38 U.S.C.A § 1116(a)(1).  Veterans who served in Vietnam are presumed to have been exposed to herbicides. See 38 C.F.R. § 3.307(a)(6).  Although the Veteran had service in Vietnam and, so, was presumptively exposed to herbicide agents (e.g., Agent Orange), none of his claimed conditions are presumptively associated with herbicide exposure.  38 C.F.R. § 3.309(e).
Where presumptive service connection is not warranted, the Veteran may still establish direct service connection based on herbicide exposure.  See, e.g., Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).  Therefore, for those conditions that the Veteran has alleged are related to herbicide exposure, the Board has considered direct service connection.
Finally, the Veteran is service-connected for diabetes mellitus and claims that several of his conditions were caused or aggravated by his diabetes mellitus.  In the context of claims for secondary service connection under 38 C.F.R. § 3.310, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to (caused by) the service-connected disability or disabilities on the other.  Buckley v. West, 12 Vet. App. 76, 84 (1998); Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).  Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).
The Board finds that the Veteran’s own etiological opinions are not competent evidence where the determination of the cause of the conditions at issue (particularly given the diagnoses of these conditions many years after service) requires specialized knowledge, training, and experience.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Jandreau, 492 F.3d at 1377.  His statements regarding observable symptoms and reports of prior medical treatment have been considered in the context of the competent medical opinions.
2. Entitlement to service connection for an eye disability
The Veteran claims he has a current eye disability that is related to his service-connected diabetes.  He has a current eye disability.  See April 2007 VA Examination (diagnosing refractive error, mild allergic conjunctivitis, bilateral incipient cataracts, asymmetric cup/disc with glaucoma suspected, and “no diabetic retinopathy observed); June 2016 VA Examination (diagnosing bilateral senile cataracts and nasal pterygium left eye; noting open angle glaucoma suspected due to asymmetric cup to disc ratio, but “no evidence of glaucoma”).
Notably, for purposes of entitlement to benefits, the law provides that refractive errors of the eyes are not considered diseases or injuries for VA disability purposes. 38 C.F.R. §§ 3.303 (c) and 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for congenital or developmental defects, including refractive error of the eyes, including where such refractive error is due to astigmatism, even if visual acuity decreased in service. Such defects are not diseases or injuries within the meaning of applicable law relating to service connection. Consequently, service connection is not available merely because the Veteran’s vision has worsened.
The issue is whether one or more of the Veteran’s eye disabilities is related to his diabetes mellitus.  The April 2007 VA examiner opined that “the loss of vision is caused by or a result of his refractive error and his symptoms by the mild allergic conjunctivitis” and, further, that “the low of vision, including cataracts, is not caused by or a result of Diabetes Mellitus, Type II.”  This opinion did not contain a rationale and does not address aggravation, so the Board will not assign it probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”).
The June 2016 VA examiner opined that the Veteran’s eye condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition.  The examiner reviewed the entire file and noted that the Veteran had not been diagnosed or treated for glaucoma and that “there is no evidence of glaucoma on examination today.”  The examiner then opined that the Veteran’s loss of vision is not secondary to Diabetes Mellitus.  The senile cataracts “in this 67-year old male are age-expected changes in the lens of the eye, not secondary to nor aggravated by diabetes mellitus.”  This opinion is based on an accurate history and thorough examination, moreover the rationale is sufficient to give the opinion probative weight.  Nieves-Rodriguez, 22 Vet. App. at 304.
There are no competent, favorable opinions of record.
The greater weight of the evidence is against finding that any of the Veteran’s current eye problems (particularly including loss of vision and cataracts) were caused by or have been aggravated by his diabetes mellitus.  There is otherwise no indication in the record that the Veteran’s eye disabilities may be associated with his active service, and the issue of direct service connection has not been raised by the record.  The claim of entitlement to service connection for an eye disability is denied.
3. Entitlement to service connection for bilateral hearing loss
The Veteran claims entitlement to service connection for hearing loss based on in-service acoustic trauma.  The in-service acoustic trauma has been conceded by VA.  Moreover, July 2015 and June 2016 VA examinations establish a current disability consisting of sensorineural hearing loss.
Importantly, the Veteran’s hearing was normal at discharge and there are no complaints or diagnoses of sensorineural hearing loss until many years after service, so continuity of symptomatology is not established.  See, e.g., October 2012 VA Primary Care Note (indicating “negative” with respect to examination of ears and specifically failing to find tinnitus, vertigo, or hearing loss); May 2014 VA Primary Care Note (same); September 2014 VA Primary Care Note (“having problems with tinnitus” and checking box indicating positive for tinnitus and hearing loss); July 2015 VA Examination (indicating initial diagnosis of hearing loss by private provider in 2014).
As to a nexus, there are two opinions of record, both negative.  
The July 2015 VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event or illness.  The examiner provided a detailed rationale, which included that the Veteran’s hearing was within normal limits at induction, at separation, and as a national guardsman in 1982, 1984, and 1988.  [At his informal conference with a Decision Review Officer at the RO, the Veteran presented a 1982 annual examination for the proposition he had hearing loss at that time.  While the audiogram showed some loss of hearing acuity, the results did not establish a hearing loss disability per 38 C.F.R. § 3.385.]  The examiner noted that the Veteran was first seen for and diagnosed with hearing loss in 2014.  The examiner acknowledged that prolonged exposure to high intensity noise levels such as in the military can cause damage to auditory structures resulting in hearing loss.  “However, retroactive effect on hearing is not expected so many years after exposure to military noise.”  The examiner opined that “hearing loss might also be associated to the effect of [the] normal aging process due to outer hair cells dysfunction.”
A June 2016 VA examination resulted in a very similar opinion by a different audiologist.  The examiner provided an identical history of audiological testing with normal results and initial diagnosis in 2014 many decades after the Veteran’s active service.  The June 2016 examiner also noted that prolonged exposure to high intensity noise levels such as the military type can cause irreversible damage to auditory structures resulting in hearing loss.  The examiner similarly noted that “retroactive effects” are “not expected so many years after exposure to military noise.”  The examiner concluded: “Therefore it has to be considered that this hearing loss might also be associated as part of the normal aging process.  Therefore it is my opinion that this Veteran’s hearing loss is less likely as not related to noise exposure while in military service.”
The Board finds that these opinions are entitled to probative value.  Nieves-Rodriguez, 22 Vet. App. at 304.  They discuss audiological testing results during active service and after service as well as the many decades delay in symptoms and diagnosis of hearing loss.  They also posit a more likely causative factor, specifically, the normal aging process.
There are no contrary, competent medical opinions of record.
The greater weight of the evidence is against finding that the Veteran’s current bilateral hearing loss disability is related to his active service.  The claim of entitlement to service connection for bilateral hearing loss is denied.
4. Entitlement to service connection for tinnitus
The Veteran claims entitlement to service connection for tinnitus which, he alleges, is due to in-service noise exposure.  The evidence establishes in-service noise exposure and a current diagnosis of tinnitus.  The remaining element of his claim is a nexus between the in-service noise exposure and is current tinnitus.
The Veteran’s discharge examination does not reveal symptoms or diagnosis of tinnitus, nor do later examinations during his service in the Puerto Rico National Guard.  The Veteran’s first documented complaints of and diagnosis for tinnitus occurred many years after his active service.  See, e.g., October 2012 VA Primary Care Note (indicating “negative” with respect to examination of ears and specifically failing to find tinnitus, vertigo, or hearing loss); May 2014 VA Primary Care Note (same); September 2014 VA Primary Care Note (“having problems with tinnitus” and checking box indicating positive for tinnitus and hearing loss).  There has not been a continuity of symptomatology of tinnitus since active service.  In making this finding, the Board acknowledges the Veteran’s conclusory statements that his tinnitus is associated with his service in Vietnam and that he had “experienced the effects for many years.”  See August 2016 VA Form 9.  However, the medical records affirmatively excluding tinnitus as a symptom until the time he was diagnosed are more credible and warrant greater probative weight than the Veteran’s statements made in the context of his claim for benefits (as opposed to those made for medical treatment), particularly as those statements do not provide a specific time frame for onset of symptoms as opposed to generally asserting an etiological link (e.g., asserting that he “started to receive treatment” after service but with no date or condition specified, “hearing loss and tinnitus associated to my MOS during my time in service”, “effects for many years”).  See also June 2016 VA Examination (“Veteran indicates tinnitus for many years but cannot state circumstances of onset.”).
As for the etiology of his tinnitus that had onset years after his active service, there are two negative opinions of record.
The July 2015 VA examiner opined that tinnitus “is known to be a symptom associated with hearing loss” and, therefore, the Veteran’s tinnitus is “less likely as not related to the exposure of hazardous noise” in service.  The Board assigns this opinion no probative value as the rationale is not specific to this Veteran, but merely asserts a general principle.
The June 2016 VA examiner specifically opined that this Veteran’s tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss.  Reading the report as a whole and in the context of the entire record, the reasoning of the expert obviously also includes a delay in onset of tinnitus as it was first mentioned and diagnosed in 2014 (as noted by the examiner) and is first reported in conjunction with complaints of hearing loss.  See September 2014 VA Primary Care Note (“having problems with tinnitus” and checking box indicating positive for tinnitus and hearing loss).  This opinion is entitled to significant probative weight.  Nieves-Rodriguez, 22 Vet. App. at 304.
There are no favorable, competent opinions of record.
The greater weight of the evidence is against the Veteran’s claim of entitlement to service connection for tinnitus.  The claim is denied.
5. Entitlement to service connection for Barrett's esophagus
The Veteran claims entitlement to service connection for Barrett’s esophagus.  
The Veteran has been diagnosed with Barrett’s esophagus, so he has a current disability.
Neither his claim nor his subsequent filings have identified a theory of entitlement.  He has not specified any in-service event allegedly related to his Barrett’s esophagus, any in-service manifestation of the condition, or any evidence indicating that his Barrett’s esophagus may be associated with any in-service event, injury, or disease.  On his 2016 VA Form 9, he stated that he began experiencing Barrett’s esophagus in 1998, so there are no allegations his symptoms began during service.  Although the Veteran’s claims suggest he may attribute all of his health conditions to exposure to herbicide agents, there is no indication in the record that Barrett’s esophagus might be caused by or in any way associated with exposure to herbicide agents.  On his 2015 notice of disagreement, he stated this condition resulted from his GERD and other stomach issues, but since those conditions are not service-connected, secondary service connection is not available.
The greater weight of the evidence is against the Veteran’s claim of entitlement to service connection for Barrett’s esophagus due to the lack of any evidence suggesting his condition is related to any in-service disease or injury.  The claim is denied.
6. Entitlement to service connection for colon polyps
The Veteran seeks entitlement to service connection for colon polyps.
Although the Veteran has a history of colon polyps, the medical evidence does not support finding that he has had a disability consisting of colon polyps during the appeal period.  See October 2000 Private Tissue Examination Report (“Biopsy of sigmoid polyp.”; “Fragments of tissue showing inflammatory polyp.”); September 2013 VA Primary Care Note (“Hx of colon polyps in the past, colonoscopy free (6/29/09)”); October 2013 Private Endoscopy Report (failing to indicate presence of colon polyps and diagnosing only diverticulitis, spastic colon, and hemorrhoids); March 2015 VA Primary Care Note (“Pt with Hx of DM type II, colonic polyps, diverticulosis, who came after develop 2 days ago acute LLQ pain moderate...Recent colo[noscopy] at non-VA with no abnormal findings”).  To the extent the claim encompasses intestinal, bowel, and abdominal symptoms, those symptoms are addressed in the IBS and diverticulitis claims below.
Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C. §§ 1110, 1131.  Accordingly, because the evidence is against finding that the Veteran has had colon polyps during the appeal period, the criteria for establishing service connection for colon polyps have not been met.  38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability there can be no valid claim.”); see also Gilpin v. West, 155 F.3d 1353, 1355 (Fed. Cir. 1998).
The evidence is not in equipoise, but is against the Veteran’s claim.  The benefit of the doubt rule does not apply, and the Veteran’s claim is denied.  See 38 U.S.C. § 5107 (West 2014).
7. Entitlement to service connection for irritable bowel syndrome
The Veteran claims entitlement to service connection for irritable bowel syndrome (IBS).  
The Veteran has been diagnosed with “possible IBS”, so for purposes of this decision, the Board will assume a current diagnosis.  See February 2012 VA Primary Care Note (“suffering from ED and possible IBS”).
However, the Veteran has not identified a theory of entitlement to service connection for IBS in his claim or in his subsequent filings.  He has not specified any in-service event allegedly related to his IBS, any in-service manifestation of the condition, or any evidence indicating that his IBS may be associated with any in-service event, injury, or disease.  He has stated that he began experiencing IBS in 1993 (see 2015 notice of disagreement) or 1998 (see 2016 VA Form 9), so there are no allegations his symptoms began during service.  Although the Veteran’s claims suggest he may attribute all of his health conditions to exposure to herbicide agents and/or exposure to “bacteria” in Vietnam, there is no indication in the record that IBS might be caused by or in any way associated with exposure to herbicide agents or “bacteria” in Vietnam.
The greater weight of the evidence is against the Veteran’s claim of entitlement to service connection for IBS due to the lack of any evidence suggesting his condition is related to any in-service disease or injury.  The claim is denied.
8. Entitlement to service connection for diverticulitis
The Veteran claims entitlement to service connection for diverticulitis.
The Veteran has been diagnosed with diverticulitis, so he has a current disability.  See, e.g., October 2013 Private Endoscopy Report (diagnosing diverticulitis, spastic colon, and hemorrhoids).
Neither his claim nor his subsequent filings have identified a theory of entitlement.  He has not specified any in-service event allegedly related to his diverticulitis, any in-service manifestation of the condition, or any evidence indicating that his diverticulitis may be associated with any in-service event, injury, or disease.  He has stated that he began experiencing diverticular disease in 1993 (see 2015 notice of disagreement) or 1998 (see 2016 VA Form 9), so there are no allegations his symptoms began during service.  Although the Veteran’s claims suggest he may attribute all of his health conditions to exposure to herbicide agents and/or exposure to “bacteria” in Vietnam, there is no indication in the record that IBS might be caused by or in any way associated with exposure to herbicide agents or “bacteria” in Vietnam.
The greater weight of the evidence is against the Veteran’s claim of entitlement to service connection for diverticulitis due to the lack of any evidence suggesting his condition is related to any in-service disease or injury.  The claim is denied.
9. Entitlement to service connection for hemorrhoids
The Veteran claims entitlement to service connection for hemorrhoids.
The Veteran has been diagnosed with hemorrhoids, so he has a current disability.  See, e.g., October 2013 Private Endoscopy Report (diagnosing diverticulitis, spastic colon, and hemorrhoids).
Neither his claim nor his subsequent filings have identified a theory of entitlement.  He has not specified any in-service event allegedly related to his hemorrhoids, any in-service manifestation of the condition, or any evidence indicating that his hemorrhoids may be associated with any in-service event, injury, or disease.  He has stated that he began experiencing hemorrhoids in 1993 (see 2015 notice of disagreement) or 1998 (see 2016 VA Form 9), so there are no allegations his symptoms began during service.  Although the Veteran’s claims suggest he may attribute all of his health conditions to exposure to herbicide agents and/or exposure to “bacteria” in Vietnam, there is no indication in the record that IBS might be caused by or in any way associated with exposure to herbicide agents or “bacteria” in Vietnam.
The greater weight of the evidence is against the Veteran’s claim of entitlement to service connection for hemorrhoids due to the lack of any evidence suggesting his condition is related to any in-service disease or injury.  The claim is denied.
10. Entitlement to service connection for GERD
The Veteran claims entitlement to service connection for gastroesophageal reflux disease (GERD).
The Veteran has been diagnosed with GERD, so he has a current disability.  See, e.g., September 2014 VA Primary Care Note (“suffering from GERD”).
Neither his claim nor his subsequent filings have identified a theory of entitlement.  He has not specified any in-service event allegedly related to his GERD, any in-service manifestation of the condition, or any evidence indicating that his GERD may be associated with any in-service event, injury, or disease.  He has stated that he began experiencing reflux issues in 1993 (see 2015 notice of disagreement) or 1998 (see 2016 VA Form 9), so there are no allegations his symptoms began during service.  Although the Veteran’s claims suggest he may attribute all of his health conditions to exposure to herbicide agents and/or exposure to “bacteria” in Vietnam, there is no indication in the record that IBS might be caused by or in any way associated with exposure to herbicide agents or “bacteria” in Vietnam.
The greater weight of the evidence is against the Veteran’s claim of entitlement to service connection for GERD due to the lack of any evidence suggesting his condition is related to any in-service disease or injury.  The claim is denied.
Duties to Notify and Assist
The Veteran has not raised any specific issues with the duty to notify or duty to assist (including such duties in the context of his Board hearing).  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument); July 2018 Written Brief Presentation (failing to allege any failure of VA to fulfill its duties to notify and assist: “The American Legion has nothing further in the way of evidence or substantive argument to present with respect to this appeal [except for the tinnitus claim].  The evidence substantiates the Veteran’s contention.”).  Therefore, the Board will not further discuss VA’s compliance with its duties to notify and assist.
REASONS FOR REMAND
1. Entitlement to service connection for basal cell skin carcinoma is remanded.
The Veteran has been diagnosed with basal cell skin carcinoma during the period on appeal.  See, e.g., March 2013 VA Treatment Note (diagnosing left forearm basal cell carcinoma); June 2012 VA Treatment Note (diagnosing basal cell carcinoma on the head).  Basal-cell carcinoma is not on the list of conditions presumptively related to herbicide exposure.  However, in the series of Agent Orange Updates, non-melanoma skin cancer was moved from the list of conditions for which there was “limited or suggestive evidence of no association” to the list of conditions for which there is “inadequate or insufficient evidence to determine an association.”  See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2014 (2016) at 907-908. Although the Veteran's cancer is not subject to presumptive service connection, the record indicates that there may be an association between his cancer and the in-service exposure to toxins. VA has a duty to provide him with an examination and obtain a medical opinion regarding the possible association.  See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006); Combee v. Brown, 34 F.3d 1039, 1040 (Fed. Cir. 1994).
2. Entitlement to service connection for a back disability is remanded
As discussed above, the claim of entitlement to service connection for a back disability is reopened.  “When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits.”  Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010).  The claim will be remanded for the RO to consider the issue on its merits in the first instance.
The matter is REMANDED for the following action:
1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veterans’ basal-cell carcinoma (including of the left forearm and head).  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide agents.  
The Veteran is presumed to have been exposed to herbicide agents (e.g., Agent Orange) during his service in the Republic of Vietnam.

 
MICHELLE L. KANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Kerry Hubers, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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