Citation Nr: 0809642 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 02-16 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin condition of the face, to include pseudo-folliculitis barbae. 3. Entitlement to service connection for multiple lipomas claimed as cysts on the arms, back, chest and face, to include as due to exposure to an herbicide known as Agent Orange. 4. Entitlement to service connection for a skin condition of the feet, to include tinea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from April 1970 to January 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The veteran's claims were remanded by the Board in July 2004. The issue of entitlement to service connection for a skin condition of the feet, to include tinea, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The record does not include credible supporting evidence verifying the occurrence of the veteran's claimed in-service stressors. 2. The veteran has pseudo-folliculitis barbae which is related to service. 3. Multiple lipomas claimed as cysts on the arms, back, chest and face, was not manifest in service and is unrelated to any incident of service origin, including Agent Orange exposure. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Pseudo-folliculitis barbae was incurred during active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 3. Multiple lipomas claimed as cysts on the arms, back, chest and face, was not incurred or aggravated in service or due to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. PTSD The veteran asserts that he has PTSD due to his service in Vietnam. At a January 2003 RO hearing the veteran reported stressors of being in a car accident, having a homemade cocktail bomb explode against the car he was driving and it burning his passenger, and the death of one of his friends. The veteran said that he didn't actually see his friend get killed, but it caused an emotional impact on him. The veteran's service medical records, including the September 1972 discharge examination report, do not reveal any psychiatric complaints or findings. The post service VA outpatient records dated from August 2001 do reveal complaints of PTSD. The veteran reported exposure to incoming fire, mines and booby traps, snipers, firefights, and the death of others. In August 2003, and again in April 2004 the veteran submitted a statement from a VA physician. The physician noted that the veteran met the criteria for a diagnosis of PTSD. On VA psychiatric examination in June 2007, the veteran reported the stress of being under sniper attack, having his vehicle firebombed, being in a major accident, having traumatic helicopter rides, and seeing people who had been killed in a bombing. The diagnosis was PTSD. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). In approaching a claim of service connection for PTSD, the question of the existence of an event claimed as a recognizable stressor must be resolved by adjudicatory personnel, i.e., the RO and the Board. If adjudicators conclude that the record establishes the existence of such stressor, then, and only then, may a medical examination determine the sufficiency of the stressor. West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). While the veteran has received many diagnoses of PTSD from VA medical personnel, the veteran does not meet the criteria for service connection for PTSD. In this case the record does not corroborate the veteran's claimed stressors through credible supporting evidence. The evidence does not reveal supporting lay statements from the veteran's fellow unit members or others who may have witnessed the veteran's alleged stressors. Nor do the service department records verify these events. In July 2005 the RO wrote to the U.S. Armed Service Center for Research of Unit Records (CURR) (now the U.S. Army and Joint Services Records Research Center (JSRRC)). In May 2006, CURR responded that the veteran's claimed stressors could not be verified. In short, the sole supporting evidence that the alleged stressful events occurred are the veteran's own statements of such experiences. A non-combat veteran's lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor. Cohen, 10 Vet. App. at 141; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In conclusion, in light of the evidence and for the reasons discussed above, it is the determination of the Board that the preponderance of the evidence is against the claim of service connection for PTSD. II. Pseudo-folliculitis barbae The veteran asserted at his January 2003 hearing that he first developed pseudo-folliculitis barbae during service when he was required to shave. The veteran stated that even though he developed pseudo-folliculitis barbae during service, he was not put on a shaving profile during service. He asserted that he had experienced chronic pseudo- folliculitis barbae ever since he first developed it in service. VA examinations dated in May 2003, May 2007, and September 2007 confirm that the veteran has pseudo-folliculitis barbae. The veteran consistently reported at the VA examinations that he first developed pseudo-folliculitis barbae when he was required to shave during service, and that he has continued to have pseudo-folliculitis barbae ever since. The May 2007 VA examiner reported that he had reviewed the veteran's medical records and he opined that it was likely that the veteran's military service contributed to the veteran's pseudo-folliculitis barbae condition. The September 2007 VA examiner also opined that the veteran's pseudo-folliculitis barbae condition was related to service. In this case, the service medical records do not verify that the veteran experienced pseudo-folliculitis barbae during service. However, the Board finds that pseudo-folliculitis barbae is a condition that a layperson is competent for the purposes of identifying the symptoms of the condition and the Board finds that the veteran's testimony regarding those symptoms is credible. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Since the veteran has been found to be credible and since there are two medical opinions providing a nexus between the veteran's current pseudo-folliculitis barbae and service, the Board finds that service connection for pseudo-folliculitis barbae is warranted. III. Multiple lipomas claimed as cysts The veteran maintains that he was exposed to Agent Orange while in Vietnam and that his multiple lipomas claimed as cysts on the arms, back, chest, and face developed as a result of that exposure. At his hearing the veteran testified that the cysts first developed after his discharge from service. Service in Vietnam during the Vietnam Era is shown by the veteran's service personnel records. Accordingly, it is presumed that the veteran was exposed to Agent Orange in such service. 38 C.F.R. § 3.307(a)(6)(iii). Multiple lipomas/cysts may not be service-connected under the Agent Orange exposure presumptive service connection framework. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. This skin condition is not included in the list of disorders at 38 C.F.R. § 3.309(e) that may be presumed as service-connected due to Agent Orange exposure. In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam (See 38 C.F.R. § 3.309(e)), but must also determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). In other words, the fact that the veteran does not meet the requirements of 38 C.F.R. § 3.309 does not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of actual direct causation, showing that his exposure to Agent Orange during service caused his claimed disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). Multiple lipomas were not shown during service or for many years after discharge from service. On VA examination in May 2007, the examiner opined that the veteran's lipomas were benign conditions that were unrelated to the veteran's military service. While the veteran maintains that the his lipoma skin condition is related to his exposure to Agent Orange during service, as a layperson he is not qualified to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In this case there is no medical evidence in support of his claim and there is medical evidence against his claim. Accordingly, the preponderance of the evidence is against the veteran's claim and service connection for multiple lipomas claimed as cysts on the arms, back, chest and face, to include as due to exposure to an herbicide known as Agent Orange, is not warranted. IV. Duty to Notify and Assist Due to the favorable outcome of the veteran's claim for service connection for pseudo-folliculitis barbae, the discussion below of the duties to notify and assist only relate to the veteran's claims for service connection for PTSD and for multiple lipomas claimed as cysts. VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, although the veteran has not been provided notice of the type of evidence necessary to establish a disability rating or an effective date for the disabilities for which service connection is sought, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). As explained above, the Board has determined that service connection for these two claimed disabilities is not warranted. Consequently, no disability ratings or effective dates will be assigned, so there can be no possibility of any prejudice to the veteran in not notifying him of the evidence pertinent to these elements. In September 2001, prior to the February 2002 rating decision on appeal, the RO sent the veteran the required notice. The letter specifically informed him of the type of evidence needed to support the claims, who was responsible for obtaining relevant evidence, where to send the evidence, and what he should do if he had questions or needed assistance. He was, in essence, told to submit all pertinent evidence he had in his possession pertaining to the claims. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board also notes that he was sent another notice letter in December 2004. With respect to VA's duty to assist the veteran, the RO has obtained the veteran's service medical records and VA medical records. The veteran has been afforded pertinent VA medical examinations. As noted above, an attempt was made to verify the veteran's claimed stressors. The Board also notes that the veteran has submitted VA medical evidence in support of his claims. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. Neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional obtainable pertinent records. In sum, the Board is satisfied that the originating agency properly processed the veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to service connection for PTSD is denied. Service connection for a skin condition of the face, to include pseudo-folliculitis barbae, is granted. Service connection for multiple lipomas claimed as cysts on the arms, back, chest and face, to include as due to exposure to an herbicide known as Agent Orange, is denied. REMAND The July 2004 Board remand instructed that the veteran be provided a VA examination of his skin, to include discussion as to whether he has a current skin condition of the feet that is related to the tinea shown in the veteran's service medical records. The September 2007 VA examination report confirms that the veteran has a current fungal infection of the feet. However, the VA examiner did not provide an opinion as to whether or not the veteran's current fungal infection of the feet is related to service. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. The Court further held that a remand by the Court or the Board imposes upon the Secretary of Veterans' Affairs a concomitant duty to ensure compliance with the terms of the remand, either personally or as "the head of the Department." 38 U.S.C.A. § 303. Further, the Court stated that where the remand orders of the Board or the Court are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The veteran's claim must be remanded so that the specified VA examination, with opinion, may be obtained. The veteran is hereby notified that it is the veteran's responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish disability ratings and effective dates if service connection was granted. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a corrective notice letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that provides an explanation as to the information or evidence needed to establish disability ratings and effective dates for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should obtain the veteran's VA treatment records dated from February 2005 to present. 3. Schedule the veteran for an examination of the skin on his feet. The examiner is requested to provide a description of any skin disabilities present. The examiner should indicate whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed skin disorder is due to disease or injury during military service, including the treatment for tinea in September 1971. The rationale for all opinions expressed should be explained. The claims file should be made available to the examiner for proper review of the medical history, and the examination report is to reflect whether such a review of the claims file was made. 4. Upon completion of the above requested development, reconsider the veteran's claim. If the benefit sought on appeal is not granted, the veteran and his representative should be provided a supplemental statement of the case and be afforded the appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs