Citation Nr: 0710842 Decision Date: 04/12/07 Archive Date: 04/25/07 DOCKET NO. 03-18 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for ganglion cysts of both wrists. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran served on active duty from January 1970 to November 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Des Moines, Iowa, Department of Veterans Affairs (VA) Regional Office (RO). In a rating decision dated in October 2002, the RO denied service connection for diabetes mellitus, Type II. In a rating decision dated in July 2004, the RO denied service connection for tinea manuum and tinea corporis, claimed as a skin rash, and bilateral ganglion cysts. In November 2005, the Board remanded the claims for additional development. In August 2005, the veteran offered testimony before the undersigned Veterans Law Judge during a hearing held at the RO. A March 2004 opinion from Kevin Kimm, D.O, states that the veteran has arthritis and neuropathy that are related to his service. The Board must review all issues reasonably raised from a liberal reading of all documents in the record. EF v. Derwinski, 1 Vet. App. 324, 326 (1991). These claims have not been adjudicated by the agency of original jurisdiction, and are referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran does not have diabetes mellitus as a result of his service. 2. The veteran does not have a skin disorder as a result of his service. 3. The veteran does not have ganglion cysts of both wrists as a result of his service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred or aggravated during the veteran's active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2006). 2. A skin disorder was not incurred or aggravated as the result of service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). 3. Ganglion cysts of both wrists were not incurred or aggravated as the result of service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The veteran urges that he developed diabetes, a skin rash, and ganglion cysts, due to exposure to toxic chemicals while serving at Fort Ord in 1970 and 1971. He has presented literature regarding that Fort Ord's designation as a Superfund site. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Service connection may also be granted for diabetes mellitus when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The Board initially notes that the veteran's argument is based on the theory that he was exposed to "multiple toxic chemicals" at Fort Ord. The veteran's representative has further argued, in essence, that the veteran was exposed to chemicals that were similar to those that personnel stationed in the Republic of Vietnam were exposed to, and that the claimed conditions are similar to those claimed by Vietnam veterans. See Statement of Accredited Representative in Appealed Case, dated in June 2005. The RO's October 2002 rating decision characterized the claim for diabetes mellitus to include a claim based on exposure to Agent Orange. However, in the veteran's substantive appeal, received in June 2003, the veteran stated that he was not claiming that service connection for diabetes mellitus was warranted due to Agent Orange exposure. Rather, he stated that his claim was based on the argument that he was exposed to chemicals other than Agent Orange. With regard to the claim for a skin disorder, in the August 2006 supplemental statement of the case, the RO characterized the claim for a skin disorder "to include as due to herbicide exposure." Similarly, the RO's analysis of the claims for diabetes mellitus and ganglion cysts of both wrists included discussion of exposure to herbicides. Given the nature of the veteran's claim, the Board will not attempt to separate herbicidal agents from the term "multiple toxic agents," other than to note the following: The statutory provision specifically covering herbicides is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (emphasis added). In summary, the presumption of exposure to herbicides is provided to all veterans who served in Vietnam during the Vietnam era. In this case, the veteran served in the continental United States only, and therefore he is not entitled to the statutory presumption of exposure to herbicides while in service. 38 U.S.C.A. § 1116(f). Therefore, with regard to all of the claims, service connection under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 is not warranted. Accordingly, the laws and regulations pertaining to presumptive service connection based on exposure to herbicides will not be further discussed. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The veteran's personnel file (DA Form 20) indicates that he served at Fort Ord from May 1970 until separation from service, and that his principal duty during that time was cook, and food service appr(entice). The veteran's service medical records do not show treatment for any relevant symptoms, or contain a diagnosis of diabetes mellitus, a skin disorder, or ganglion cysts of either wrist. An October 1970 report shows treatment for pediculus pubis. A separation examination report is not of record. The post-service medical evidence consists of VA and non-VA reports, dated between 1984 and 2005, and decisions of the Social Security Administration (SSA), dated between 1984 and 1994, to include the SSA's supporting documentation. A. Diabetes Mellitus The Board finds that the preponderance of the evidence is against the claim that the veteran has diabetes mellitus as a result of his service. The veteran was not treated for diabetes mellitus during service. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303. With regard to the post-service medical evidence, the Board first notes that the veteran is shown to have a history of obesity and hyperglycemia. See e.g., Waverly Medical Hospital report, dated in March 1985; reports from Dr. Kimm/Mercy Family Care, dated in 1997. The earliest evidence of diabetes mellitus is found in VA progress notes, dated in 1998. This is approximately 16 years after separation from service. This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the Board finds that a March 2005 VA examination report is highly probative evidence which shows that the veteran does not have diabetes mellitus as a result of his service. This report is the most recent examination report of record. In this report, the examiner stated that he had reviewed the claims files. He provided a detailed account of the veteran's medical history. The diagnoses noted diabetes mellitus type II, uncontrolled, "far more likely than not related to morbid obesity (documented at least 11 years prior to the onset of DM); less likely than not related to any alleged toxic exposure while stationed at Ft. Ord, CA." There is no competent evidence to show that diabetes mellitus was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. § 3.307, 3.309. Furthermore, there is no competent evidence showing that the veteran has diabetes mellitus as a result of exposure to herbicides during service. Combee; see also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In reaching this decision, the Board has considered the opinion of Kevin Kimm, D.O., dated in March 2004, in which Dr. Kimm states: Based upon my treatment and examination of the above referenced claimant, it is my medical opinion that the non-insulin dependent diabetes mellitus, arthritis, and neuropathy conditions more likely than not are related to his active military duty. This is based upon medical records from professionals post his military service. As an initial matter, this opinion does not appear to implicate the claims for a skin disorder or for ganglion cysts of the wrists. In addition, the probative value of Dr. Kimm's opinion is greatly decreased by the fact that it indicates that it is based on (otherwise unidentified) reports dated "post his military service" (i.e., it is not shown to have been based on a review the veteran's claims files). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). The Board further notes that Dr. Kimm's reports indicate that he began treating the veteran in no earlier than 1995, which is approximately 14 years after separation from service. Finally, the body of his March 2004 opinion is two sentences long. It does not include citation to clinical findings during service, or thereafter, nor is it accompanied by a rationalized explanation, to include a discussion of other risk factors such as obesity. In summary, the Board finds that the evidence in favor of the claim is outweighed by the evidence against the claim. The Board therefore finds that the claim must be denied. B. Skin Disorder The post-service medical evidence includes a VA examination report, dated in September 1994, which notes dermatographia, without hives or history of hives, and blotchy, erythematous, slightly raised confluent skin eruption of the forearms, torso, having the appearance of possible tinea versicolor. There was no relevant diagnosis. Subsequently dated medical reports include a VA examination report, dated in March 2005, which contains diagnoses that included tinea manuum, and tinea corporus. The Board finds that the preponderance of the evidence is against the claim that the veteran has a skin disorder as a result of his service. The veteran was not treated for a skin disorder during service. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303. With regard to the post-service evidence, even assuming the symptoms noted in the 1994 VA examination report were sufficient to show a chronic skin condition, the earliest evidence of a skin disorder would come approximately 22 years after separation from service. This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim. Maxson. Furthermore, there is no competent evidence to show that the veteran has a skin disorder as a result of his service, to include as due to exposure to any type of chemical, or as a result of exposure to herbicides during service. Combee; Brock. In this regard, the only competent opinion of record is found in a March 2005 VA examination report, which shows that the examiner determined that it was less likely than not that the veteran's tinea manuum and tinea corporus were related to any alleged toxic exposure. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. C. Ganglion Cysts of the Wrists The Board first notes that the medical evidence shows that the veteran has been diagnosed with a number of upper extremity disorders, to include peripheral neuropathy, tendonitis, over-use syndrome, and a notation of "likely" degenerative joint disease. However, none of these disorders are within the scope of the issue on appeal. The post-service medical evidence includes a report from Scott B. Neff, D.O., dated in December 1993, which shows the following: the veteran's work history included working on industrial machines, to include a choke grinder and a hydraulic press, between 1974 and 1980. He subsequently worked at jobs that included tool and die work. He began experiencing problems with his left wrist in 1984, with two surgeries, between 1984 and 1986, and no subsequent left wrist problems until 1991. He began having right wrist problems in 1986, after he sustained an injury to his right wrist. This injury was the subject of a workers' compensation claim. He returned to work in 1988, operating a lathe. Between 1986 and 1988, he had two surgeries to the right wrist. He was asymptomatic until 1991. With regard to the left wrist, other evidence includes reports which show that the veteran stated that he began having left wrist symptoms in 1984. See e.g., VA examination report, dated in August 1986; veteran's claim for vocational rehabilitation, dated in February 1992. The reports show that the veteran had a number of surgeries on his left wrist for a recurrent ganglion cyst; the earliest surgery was in 1985. See e.g., reports from Arnold E. Delbridge, M.D., dated between 1985 and 1991; reports from Surgical Associates of North Iowa, P.C., (SANI) dated in between 1985 and 1988. A report from Morris C. Benson, M.D., dated in January 1986, notes that the veteran's cyst of the left wrist is "quite likely work-related" and that the exacerbation of it was "definitely traced" to running a lawn mower and driving large trucks. With regard to the right wrist, this evidence includes reports which show that the veteran underwent a two excisions of a ganglion cyst in 1988. See e.g., SANI reports, dated in 1988. These reports include a notation that the veteran was a full-time lathe operator, and a November 1988 report notes, "In my opinion this is definitely a workman's comp related incident..." Decisions of the SSA include supporting documentation from a state disability agency, and state vocational rehabilitation reports. The SSA determined that the veteran was disabled as of June 1991, with a primary diagnosis of neuropathy of both hands. See SSA decision, dated in April 1994. The Board finds that the preponderance of the evidence is against the claim that the veteran has ganglion cysts of either wrist as a result of his service. The veteran was not treated for a wrist disorder during service. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303. With regard to the post-service evidence, the earliest evidence of a ganglion cyst of either wrist comes in 1984. This is approximately 12 years after separation from service. This lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim. Maxson. Furthermore, when read in context, the SSA's supporting documentation, to include medical reports from a variety of health care providers, clearly indicates that the veteran had a long history of manual labor, and that his wrist ganglions are associated with his post-service employment. There is no competent evidence to show that the veteran has ganglion cysts of either wrist as a result of his service, to include as due to exposure to any type of chemical or exposure to herbicides. Combee; Brock. In this regard, in a March 2005 VA examination report, the diagnoses included ganglion cyst, right wrist, and ganglion cyst, left wrist. Both disorders were noted to be status post operative status surgical incision, without evidence of recurrence. The examiner stated that they were "far more likely than not work related due to repetitive nature of previous employment and a history of tensynovitis with ganglion occurrence, less likely than not related to any alleged toxic exposure while stationed at Ft. Ord CA." Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. D. Conclusion The Board has considered the veteran's oral and written testimony submitted in support of his arguments that he has diabetes mellitus, a skin disorder, and ganglion cysts of the wrists, that should be service connected. His statements are not competent evidence of a diagnosis, nor are they competent evidence of a nexus between the claimed conditions and the veteran's service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). With regard to the articles that the veteran has submitted, they indicate that chemical waste was disposed of within Fort Ord's borders. However, this literature does not discuss the veteran's principal duties during service, or the disabilities involved. None of it provides medical evidence demonstrating a causal relationship between any of the claimed disabilities and exposure to chemicals. In addition, the articles do not discuss generic relationships between any of the claimed disabilities and exposure to chemicals with such a degree of certainty that, under the facts of this case, they are sufficiently probative of a nexus between exposure to chemical during service and any of the claimed disabilities to warrant a grant of any of the claims. See Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Accordingly, the veteran's claims for service connection for diabetes mellitus, a skin disorder, and ganglion cysts of the wrists, must be denied. The Board considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. VCAA On November 9, 2000, the President signed into the law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). The VCAA imposes obligations on VA on its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Court also held that VA must request that the claimant provide any evidence in his possession that pertains to the claim. Id. This "fourth element" comes from the language of 38 C.F.R. § 3.159(b)(1). The Board finds that the VCAA notice requirements have been satisfied. In this case, in January and March of 2004, the RO sent the veteran letters (hereinafter "VCAA notification letters") that informed him of the type of information and evidence necessary to support his claims. The RO's letters informed the veteran of his and VA's respective responsibilities for obtaining information and evidence under the VCAA and contained a specific request for the veteran to provide additional evidence in support of his claims. He was asked to identify all relevant evidence that he desired VA to attempt to obtain. With regard to the claim for diabetes mellitus, the VCAA letters were mailed to the appellant after the initial RO adjudication of his claim. However, any defect with respect to the timing of the VCAA notice in this case was nonprejudicial. There is no indication that the outcome of the claim has been affected, as all evidence received has been considered by the RO. The veteran has been provided a meaningful opportunity to participate effectively in the processing of his claim, as he has been afforded the opportunity to submit additional argument and evidence, which he has done. He was afforded a hearing in February 2004. For these reasons, the timing of the VCAA notices was not prejudicial. Mayfield v. Nicholson, 444 F.3d 1328 (2006). During the pendency of this appeal, the Court further redefined the requirements of the VCAA to include notice that a disability rating and an effective date for award of benefits would be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the veteran was afforded sufficient notice in the August 2006 supplemental statement of the case, see Mayfield v. Nicholson, No. 02-1077 (U.S. Vet. App. Dec. 21, 2006), and in any event, as the claims for service connection have been denied, no disability rating or effective date will be assigned; and any defect with respect to the notice requirement was non-prejudicial. Therefore, VA's duty to notify the appellant has been satisfied. VA also has a duty to assist the appellant in obtaining evidence necessary to substantiate the claims. The Board is satisfied that its duty has been met and that all reasonable efforts to develop the record have been made. The RO has obtained the veteran's service and service medical records, VA and non-VA medical reports, and SSA reports. The veteran has been afforded an examination, and etiological opinions have been obtained. The Board therefore finds that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for diabetes mellitus is denied. Service connection for a skin disorder is denied. Service connection for ganglion cysts of both wrists is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs