Citation Nr: 1015892 Decision Date: 04/30/10 Archive Date: 05/06/10 DOCKET NO. 06-08 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for osteoporosis claimed as the result of medical treatment for psoriasis performed at a VA medical center. 2. Entitlement to service connection for type II diabetes mellitus, including as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issue of entitlement to service connection for type II diabetes mellitus is addressed in the REMAND portion of the decision below. The issue of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for Cushing's syndrome claimed as the result of medical treatment for psoriasis performed at a VA medical center has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran is not shown to have additional disability, including osteoporosis, that is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospitalization or medical or surgical treatment, or that the proximate cause of any such disability was an event which was not reasonably foreseeable. CONCLUSION OF LAW The requirements for compensation under 38 U.S.C.A. § 1151 for additional disability claimed to be caused by hospitalization, or medical or surgical treatment provided by the VA are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). The RO sent correspondence in October 2004 and a rating decision in February 2005. Those documents discussed specific evidence, particular legal requirements applicable to the claim, evidence considered, pertinent laws and regulations, and reasons for the decision. VA made all efforts to notify and to assist the appellant with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to the claimant's receipt of compliant notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the December 2005 statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication, including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination in relation to the claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Furthermore, the Board finds that if there is any deficiency in the notice to the Veteran or the timing of the notice it is harmless error because the appellant had a meaningful opportunity to participate effectively in the processing of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board erred in relying on various post-decisional documents for concluding adequate notice was provided, but the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore the error was harmless). For claims received after October 1, 1997 (as in this case), compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 are payable for additional disability not the result of the Veteran's own willful misconduct, where such disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee, or in a Department facility, where the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. 38 U.S.C.A. § 1151; see also VAOPGCPREC 40-97. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1),(2). The Veteran contends that he is entitled to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability because he claims that following treatment for psoriasis he developed osteoporosis. The Veteran's service medical records do not reveal any complaints, findings, or treatment for a back disability. Moreover, the Veteran does not contend that he incurred a back injury or received treatment related to his claimed osteoporosis in service. VA outpatient treatment reports dated from March 1999 to July 2005 reveal a diagnosis of and treatment for psoriasis and osteoporosis. In March 1999, the Veteran was noted to use topical steroids for his psoriasis which caused Cushing's syndrome. The examiner recommended psoralen-ultraviolet- light (PUVA) treatment for the Veteran's psoriasis but the Veteran indicated that he was unable to travel to the Houston VA Medical Center (VAMC) for the treatment or see a private physician due to the cost. The examiner recommended that the Veteran cut back on his use of Triamcinolone ointment by one- third. In April 2000, the Veteran was noted to have back pain that was probably secondary to osteoporosis. An August 2001 magnetic resonance imaging (MRI) of the spine revealed disc degeneration at L5-S1 with minimal bulging of the disc at L5-S1 without disc herniation. In July 2003, the Veteran was noted to have osteoporosis which was partly due to being on a lot of medication for psoriasis. He was noted to use Fosamax to treat osteoporosis. The records reflect that the Veteran's psoriasis was variously treated with topical Fluocinoide, Tazarotene gel, Triamcinolone ointment, and oral Methotrexate. The Veteran was afforded a VA examination in November 2004. The Veteran reported that he used a steroid cream prescribed by VA to treat psoriasis. He denied injury to his back following military service. He indicated that he used a cane for activities such as walking. The Veteran indicated that his back pain was localized. Physical examination revealed an obese male with discoloration of the skin with scaly rash noted particularly in the extremities. The examiner reported that an MRI of the lumbar spine performed in August 2001 revealed disc degeneration at L5-S1 with minimal bulging of the disc. There was no evidence osteoporosis at that time. The examiner diagnosed the Veteran with chronic low back strain with a history of osteoporosis of the lumbar spine, exogenous obesity aggravating the back condition, and severe psoriasis. The examiner indicated that a bone densimeter test was pending and a definitive diagnosis of osteoporosis was not made. The examiner reviewed the claims file and indicated that the records consisted mainly of treatment for psoriasis. He noted that the Veteran's service medical records did not reveal any treatment for a back disability or psoriasis and no history of injury to the back. The examiner opined that osteoporosis of the lumbar spine was not found and was not considered a necessary consequence as a result of taking topical Cortisone medication for the treatment of psoriasis. He concluded that osteoporosis of the lumbar spine was not caused by or as a result of treatment for psoriasis. In an addendum the examiner noted that a bone density test revealed borderline osteopenia of the lumbar spine. The Veteran has indicated that he is in receipt of Supplemental Security Income (SSI) from the Social Security Administration (SSA). It is not clear whether the SSI benefits are based on a disability or the Veteran's income. Furthermore, the Veteran has not indicated that even if the benefits were based on a disability that it was due to his claimed osteoporosis. In the recent case of Golz v. Shinseki, No. 09-7039 (Fed. Cir.) (Jan. 4, 2010), the United States Court of Appeals for the Federal Circuit found that, when a SSA decision pertains to a completely unrelated medical condition and the Veteran makes no specific allegations that would give rise to a reasonable belief that the medical records may nonetheless pertain to the injury for which the Veteran seeks benefits, relevance is not established. There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant. In this case, there is no basis for finding that the Veteran's SSA records would be relevant to the issue on appeal. The Board would also observe that this claim involves the Veteran's contentions that he has additional disability as a result of VA treatment, and all VA records pertaining to such treatment, as well as subsequently dated VA records are associated with the claims file. After a review of the evidence in this Veteran's case, the Board has determined that compensation under 38 U.S.C.A. § 1151, for additional disability as a result of VA medical treatment is not warranted. Simply put, the greater weight of probative evidence is against finding that the Veteran suffered additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment, or that the residuals were not reasonably foreseeable. The evidence demonstrates that the Veteran underwent treatment for psoriasis and osteoporosis at VA. The record also contains an opinion rendered by a VA physician who reviewed the Veteran's claims file and considered the Veteran's contentions. This physician concluded that the proper diagnosis for the Veteran's claimed back disability was osteopenia. The examiner indicated that osteoporosis of the lumbar spine was not found and was not considered a necessary consequence as a result of taking topical Cortisone for treatment of psoriasis. He opined that osteoporosis of the lumbar spine was not caused by or as a result of treatment of psoriasis. The Veteran has produced no competent evidence to counter the physician's opinion. The Board acknowledges the Veteran's contention that he has osteoporosis related to treatment he receives for psoriasis at VA. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Veteran can attest to factual matters of which he had first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, the Veteran as a lay person has not been shown to be competent to make medical conclusions. Therefore, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Board places far more probative weight on the findings and conclusions of the competent VA health care specialist discussed above. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's claimed osteoporosis resulted from VA medical treatment. The Board is unable to identify a reasonable basis for granting entitlement to compensation under 38 U.S.C.A. § 1151. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). ORDER Compensation pursuant to 38 U.S.C.A. § 1151 for osteoporosis claimed as the result of medical treatment for psoriasis performed at a VA medical center is denied. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim of entitlement to service connection for diabetes mellitus can be promulgated. VA outpatient treatment reports dated from March 1999 to July 2005 reflect a diagnosis of and treatment for type II diabetes mellitus. The Veteran's representative indicated that the Veteran served aboard the U.S.S. Ticonderoga which was stationed off the Vietnamese coast in the Gulf of Tonkin during the period from January to July 1967. He asserts that the Veteran at times traveled via the VR-21 to Saigon, Cam Rhan Bay, and Da Nang to pick up or drop off supplies and was exposed to Agent Orange during those visits to Vietnam. The Veteran's available service personnel records reveal that the Veteran served as part of the Fleet Tactical Support Squadron 21 from March 1966 to September 1967 and aboard the U.S.S. Ticonderoga from December 1967 to October 1969. The Veteran's DD Form 214 indicates that he received the Vietnam Service Medal for service with the Fleet Tactical Support Squadron 21 in March 1967. The Veteran indicated in his March 2005 notice of disagreement that he traveled from Hawaii to inland Vietnam to Saigon, Cam Rahn Bay and Da Nang on a regular basis to drop off supplies with the VR-21 transport squadron. It appears that the RO obtained the Veteran's service personnel records, but did not obtain any further information in an attempt to verify the Veteran's contentions that his duties involved visitation to Vietnam. For example, it does not appear that records such as deck logs, unit history, or ship history for the U.S.S. Ticonderoga or the unit history for the Fleet Tactical Support Squadron, were consulted. In order to properly adjudicate the Veteran's claim further information is necessary in order to corroborate the Veteran's contentions that his service duties involved actual visitation to Vietnam. Therefore, in order to give the Veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the Veteran will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: Contact the National Records Personnel Service (NPRC), United States Armed Services Center for Research of Unit Records (USACRUR), Department of the Navy, or any other agency that may assist in determining whether the Veteran visited Vietnam at any time as part of his duties with Fleet Tactical Support Squadron 21 from March 1966 to September 1967 and aboard the U.S.S. Ticonderoga from December 1967 to October 1969. A response must be obtained prior to readjudication of the claim. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. ______________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs