Citation Nr: 0314352 Decision Date: 07/01/03 Archive Date: 07/10/03 DOCKET NO. 01-05 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for acute lymphoblastic leukemia as secondary to exposure to ionizing radiation and/or hazardous chemicals. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for pigmented lesions. 4. Entitlement to service connection for a brittle left ear, to include the issue of whether new and material evidence has been presented to reopen the claim. 5. Entitlement to a rating in excess of 10 percent for status post-fracture of the right radial head with minor deformity and arthritis. 6. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty for approximately 26 years. This case comes before the Board of Veterans Appeals (Board) on appeal from separate rating decisions by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2001, the veteran appeared and testified via video-conference before C.W. Symanski, who is the Veterans Law Judge rendering the final determination in these claims and was designated by the Chairman of the Board to conduct that hearing. 38 U.S.C.A. § 7102(b) (West 2002). The case was before the Board in May 2002 at which time the Board conducted additional development of the claims pursuant to 38 C.F.R. § 19.9(a)(2). The issues of entitlement to service connection for acute lymphoblastic leukemia as secondary to exposure to ionizing radiation and/or hazardous chemicals, an increased rating for right elbow disability and entitlement to TDIU will be addressed in the remand following this decision. FINDINGS OF FACT 1. There is no competent evidence that the veteran manifests a current disability of the right knee. 2. The veteran first manifested dermato-fibroma and solar lentigo, claimed as pigmented lesions, after his discharge from service, and there is no competent evidence linking these skin disorders to his period of active service. 3. The veteran manifests chondritis of the left ear with resulting fibrosis secondary to an insect bite in service. CONCLUSIONS OF LAW 1. Disability of the right knee was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002)); 38 C.F.R. §§ 3.159, 3.303(b) (2002). 2. Dermato-fibroma and solar lentigo (claimed as pigmented lesions) were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002)); 38 C.F.R. §§ 3.159, 3.303(b) (2002). 3. Chondritis of the left ear with resulting fibrosis was incurred during active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to assist and provide notice As an initial matter, the Board notes that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) became effective during the pendency of this appeal. Among other things, this law requires VA to notify a claimant of the information and evidence necessary to substantiate a claim and includes other notice and duty to assist provisions. See 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West 2002). VA has enacted regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002). The Board notes that the claims for service connection for acute lymphoblastic leukemia as secondary to exposure to ionizing radiation and/or hazardous chemicals and an increased rating for right elbow disability require further development and will be addressed in the remand following this decision. The claim of entitlement to TDIU must be deferred pending development of the above-mentioned claims. The Court has emphasized that the provisions of the VCAA impose new notice requirements on the part of VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA has a duty to notify a claimant (and his representative) of any information, whether medical or lay evidence or otherwise, not previously provided to VA that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002). As part of that notice, VA shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, VA will attempt to obtain on behalf of the claimant. Id. By means of a Statement of the Case (SOC) and Supplemental Statements of the Case (SSOC), the RO has notified the veteran of the Reasons and Bases for denying his claims, and the evidence obtained and reviewed in arriving at its decision. By letters dated in May 1999, October 2000 and January 2001, the RO has also notified the veteran of the evidence necessary to substantiate his claims as well as the duties on the part of VA and the veteran in obtaining such evidence. Following review of the claims folder, the Board provided the veteran a letter, dated September 20, 1992, which informed the veteran of the evidence deemed necessary to substantiate his claim, and the duties on the part of VA and the veteran in obtaining such evidence. On this record, the Board finds that the provisions of 38 U.S.C.A. § 5103 have been satisfied. The provisions of 38 U.S.C.A. § 5103A require VA to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Specifically, VA has an obligation to make continuing efforts to obtain records in the possession of a Federal department or agency until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002). In this case, VA has obtained the veteran's service medical records, his VA clinical records, and documents associated with his award of disability benefits from the Social Security Administration. The veteran has not referenced any additional evidence and/or information in the possession of a federal agency, and the Board finds that the provisions of 38 U.S.C.A. § 5103A(b)(3) have been satisfied. The Board further notes that all private medical records identified by the veteran as relevant to his claims have been associated with the claims folder. As such, the provisions of 38 U.S.C.A. § 5103A(b)(1) have been satisfied. The provisions of 38 U.S.C.A. § 5103A(d) require VA to obtain medical examination or opinion if necessary to make a decision on the claim. VA has provided the veteran skin examination to determine the nature and etiology of his claimed left ear disability. The Board further notes that there is no competent evidence that the veteran manifests current disability of the right knee nor competent evidence that his claimed pigmented lesions, which were first manifested after his retirement from service, have any association with an in-service event. As such, the Board finds that obtaining medical opinion/examination is not necessary to make a decision on these claims. See Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003) (VA has no obligation to provide medical opinion pursuant to 38 U.S.C.A. § 5103A(d) absent evidence that a claimant's disability or symptoms may be associated with service). In the process of developing these claims, the Board undertook additional evidence development pursuant to the provisions of 38 C.F.R. § 19.9(a)(2). This development resulted in the acquisition of medical records not previously considered by the RO. None of this acquired evidence contains any relevant information/findings which could substantiate his claims for service connection for a right knee disability and pigmented lesions. The Board also notes that the case on appeal has been advanced on the docket due to the veteran's illness. The Board, therefore, finds that in order to accord every consideration to the veteran, his claims will be adjudicated when possible without remand to the RO for review of the evidence in the first instance. Based upon the above, the Board finds that there is sufficient evidence of record to make a decision on the claims, that the notice and duty to assist provisions of the VCAA have been satisfied, and that no reasonable possibility exists that any further assistance would aid the veteran in substantiating his claims. II. Factual summary The veteran entered active service in July 1966, and retired in December 1992. In pertinent part, he presented to the health care clinic in April 1981 with complaint of left ear pain and stiffness following an insect bite. At that time, his left external ear auricle was tender and very brittle to touch. He was given an assessment of questionable chondritis. His stiffness of the left ear was noted again the following month. On February 13, 1984, the veteran was seen for complaint of right knee pain of 8 days duration. At that time, his physical examination was significant only for right patellar pain on palpation, and x-ray examination was negative. He was given an impression of possible chondromalacia treated with Parafon Forte and a referral to physical therapy (PT). A February 23, 1984 examination was significant for minimal tenderness of the right patellar tendon, retropatellar pain with compression, and crepitus. He was given assessments of patellofemoral (PF) syndrome, and mild patella tendonitis. He was prescribed ice and aspirin (ASA). In September 1988, the veteran was seen for irregular pink plaques scattered mainly across his left breast. He was given initial impressions of allergic reaction/urticaria and tinea pedis for which he was prescribed Atarax, Prednisone and Tinactin Solution. His symptoms returned following completion of his prescriptions, and were assessed with a possible contact allergy. A punch biopsy pathology report noted the presence of microconidia, and he was given an assessment of tinea versicolor treated with Selsun Shampoo and another topical salve. On his retirement examination in April 1992, the veteran reported ongoing problems with skin peeling/rashes, and a past history knee pain with click and locking. His rash was noted to be undergoing treatment, and his knee problem was noted as "no sequelae." Post-service, the record reflects the veteran's treatment for small, hairbearing macular pigmented lesions on the upper thighs and buttocks at Fort McClellan in 1994. A punch biopsy pathology report indicated a diagnosis of dermato- fibroma. A May 2003 VA skin examination noted the presence of multiple pigmented macules on the face diagnosed as solar lentigo secondary to excessive sun exposure. Otherwise, there is no further evidence of treatment for pigmented lesions nor any post-service evidence of treatment for right knee disorder. In September 2001, the veteran described his right knee disability as a feeling of having "a rock or something lodged in there." Otherwise, he denied symptoms such as pain, swelling or redness. He also denied any post- service treatment for right knee disability nor knowledge of a current diagnosis. III. Applicable law and regulation Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). The claimant bears the burden to present and support a claim of benefits. 38 U.S.C.A. § 5107(a) (West 2002). In evaluating service connection claims, the Board shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). VA has defined competency of evidence as follows: "(1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. §3.159(a) (2002). IV. Right knee disability The veteran contends that he has a current disability of the right knee which is related to active service. His service medical records reflect two clinic visits in February 1984 for right knee pain with findings significant only for retropatellar pain with compression and crepitus. His assessments included possible chondromalacia, patellofemoral (PF) syndrome, and mild patella tendonitis. Otherwise, there is no history of his treatment for right knee complaints for the remaining 8+ years of his active duty service. On his separation examination in February 1992, the examiner determined that the veteran manifested "no sequelae" from his prior complaint. Post-service, the veteran has testified to a sensation of having something embedded in his knee, but has otherwise denied any other symptoms. His lay report of symptoms is insufficient, in and of itself, to establish the existence of a current disability. Sanchez-Benitez, 259 F. 3d. 1356 (Fed. Cir. 2001). There is no competent evidence that the veteran manifests a current disability of the right knee. By letter dated September 20, 2002, the Board specifically advised the veteran that he needed to provide competent evidence of a current disability of the right knee, but that evidence has not been forthcoming. In fact, the veteran has denied any post-service treatment for his claimed right knee disorder. Accordingly, the Board finds that the veteran has failed to meet his burden to present and support his claim of benefits, and the claim for service connection for a right knee disability must be denied. 38 U.S.C.A. § 5107(a) (West 2002). There is no doubt of material fact to be resolved in his favor. 38 U.S.C.A. § 5107(b) (West 2002). V. Pigmented ulcers The veteran also contends that he manifests a skin disorder, claimed as pigmented lesions, which were incurred in service. The Board initially notes that the RO previously denied service connection for tinea versicolor, claimed as a rash by the veteran, by means of an unappealed rating decision dated January 1993. By letter dated September 20, 2002, the Board requested the veteran to provide evidence of a current disability of pigmented lesions as claimed by the veteran. In October 2002, the veteran responded by presenting evidence of treatment for pigmented lesions of the left upper thighs and buttocks, diagnosed as dermato-fibroma, in 1994. For procedural purposes, the Board finds that the veteran's current claim is a separate and distinct claim from the one adjudicated by the RO in January 1993. A review of the veteran's service medical records show no complaint or treatment for a skin condition resembling the pigmented lesions first treated in 1994. He holds current diagnoses of dermato-fibroma and solar lentigo. There is no competent evidence linking these skin disorders to his period of active service. The veteran's belief of a causal link holds no probative value in and of itself, see Grottveitt v. Brown, 5 Vet. App. 91, 93 (1993), nor is there an allegation of continuity of symptomatology. See 38 C.F.R. § 3.303(b). On this evidence, the Board must find that the veteran first manifested dermato-fibroma and solar lentigo, claimed as pigmented lesions, after his discharge from service, and there is no competent evidence linking these skin disorders to his period of active service. The claim for service connection, therefore, must be denied. There is no doubt of material fact to be resolved in his favor. 38 U.S.C.A. § 5107(b) (West 2002). VI. Left ear disability The veteran contends that he manifests brittleness of the left ear as a result of an insect bite in service. The RO denied a service connection claim by means of an unappealed rating decision dated in January 1993. At that time, the RO reviewed service medical records which reflected the April- May 1981 assessment of stiffness of the left ear following an insect bite. However, there was no post-service evidence of current disability. That decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a) (1993). As a general rule, once a claim has been disallowed, that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2002). However, if the claimant can thereafter present new and material evidence of the previously disallowed claim, then the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108 (West 2002). The veteran requested a reopening of his claim in February 2000. Evidence added to the record since the RO's January 1993 final decision includes a May 2003 VA examination report which noted that the veteran manifested excess firmness of the left ear which, according to the examiner, warranted a diagnosis of chondritis with resulting fibrosis secondary to trauma. This evidence is clearly new and material evidence which is so significant as to warrant a reopening of his claim. 38 C.F.R. § 3.156(a) (2002); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). On this evidence, the Board concludes that the veteran manifests a current disability of chondritis of the left ear with resulting fibrosis secondary to an insect bite in service. The claim for service connection, therefore, is reopened and granted. ORDER Service connection for a right knee disability is denied. Service connection for dermato-fibroma and solar lentigo (claimed as pigmented lesions) is denied. Service connection for chondritis of the left ear is granted. REMAND The veteran claims that his Acute Lymphocytic Leukemia (ALL) results, in part, from his exposure to chemicals while working as a "Chemical Operations Specialist" in service. A March 1999 opinion letter from Josef T. Prchal, M.D., included opinion that the veteran manifested a secondary leukemia with chromosomal changes associated with past exposure to chemical agents known to induce leukemia, such as benzene. In November 2000, Ellen M. Spremulli, M.D., included opinion that the veteran's Acute Lymphocytic Leukemia could possibly be caused from heavy exposure to "other chemical agents." In September 2002, the Board wrote to the veteran requesting him to identify the chemical(s) he was exposed to in service. The next month, the veteran indicated that he could only recall being exposed to Trichloroethylene (TCE) in service. A news article previously submitted by the veteran indicates that the water supply at Camp LeJeune was contaminated with excess levels of TCE and Tetraclorethylene (PCE). Based on the above, the Board is of the opinion that medical opinion is necessary to make a decision in this claim. 38 U.S.C.A. § 5103(d) (West 2002). The Board next notes that the veteran's service medical records reflect that his right elbow disability was manifested, in part, by a 10 to 20 degree loss of right arm extension. The September 2000 VA joints examination does not provide a measurement of the veteran's right arm extension and, therefore, must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2 (2002). The Board must defer adjudication of the TDIU claim pending completion of the requested development and adjudication of the pending service connection and increased rating claims. Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request him to identify all VA and non-VA providers of treatment for his Acute Lymphocytic Leukemia and right elbow disability since October 2002. The RO should take appropriate steps to obtain any other records identified by the veteran as relevant to his claims on appeal. 2. Following completion of the foregoing development, the RO should forward the veteran's claims folder to an oncologist for opinion on the following question: Is it least as likely as not that the veteran's Acute Lymphocytic Leukemia is causally related to his in service exposure to Trichloroethylene (TCE) and Tetraclorethylene (PCE), or alternatively, is causally related to his combined exposure to chemicals and 0.044 rem of ionizing radiation? The examiner should provide rationale for the basis of his/her opinion. 3. The RO should also schedule the veteran for orthopedic examination for the purpose of determining the current severity of his right elbow disability. In addition to addressing the range of motion of the right elbow in terms of flexion, extension, supination and pronation, the examiner is requested to specifically address the extent, if any, of functional loss of use of the right elbow due to pain, incoordination, weakness, pain on flare-ups and fatigability with use. If feasible such findings should be portrayed in terms of degrees of additional loss of motion. The examiner should also undertake x-ray examination of the right elbow, and describe any impairment or deformity of the right elbow joint. The claims folder and a copy of this remand must be made available to the examiner prior to the examination for review 4. Thereafter, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The purpose of this REMAND is to obtain additional information and ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.