Citation Nr: 0809829 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-11 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an irregular heartbeat. 2. Entitlement to service connection for a skin disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Debbie A. Riffe, Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from September 1966 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in February 2005 and July 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2008, the veteran appeared at the RO and testified at a hearing before the undersigned Veterans Law Judge, who has been designated to make the final disposition of this proceeding for VA. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. An irregular heartbeat was not affirmatively shown to have been present contemporaneously with service; and an irregular heartbeat, diagnosed as arrhythmia, first documented after separation from service, is unrelated to a disease, injury, or event of service origin. 2. A skin disorder was not affirmatively shown to have been present contemporaneously with service; and a skin disorder, diagnosed as dermatitis, first documented after separation from service, is unrelated to a disease, injury, or event, including exposure to Agent Orange, of service origin. CONCLUSIONS OF LAW 1. An irregular heartbeat, diagnosed as arrhythmia, is not due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2007). 2. A skin disorder, diagnosed as dermatitis, is not due to disease or injury that was incurred in or aggravated by service; a skin disorder is not a disease subject to the presumption of service connection due to exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claims, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claims. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letters, dated in November 2004 (for irregular heartbeat) and May 2005 (for skin disorder). The veteran was notified of the evidence needed to substantiate the claims of service connection, namely, evidence of current disability, evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The veteran was also notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. He was asked to submit any evidence in his possession that pertained to the claims. The notice included the provision for the effective date of the claims. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim, except for the provisions for the degree of disability assignable and for the effective date of the claims). As the VCAA notice, pertaining to the provisions for the degree of disability assignable and for the effective date of the claims was provided after the initial adjudications of the claims, the timing of the VCAA notice did not comply with the requirement that the notice must precede the adjudication. As the claims are denied no disability rating or effective date can be awarded as a matter of law. Therefore there is no possibility of any prejudice to the veteran with respect to the timing error. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims. The veteran was afforded the opportunity to testify at a personal hearing at the RO in February 2008 before the undersigned Veterans Law Judge. The RO has obtained the veteran's service medical records and VA records. In regard to the latter, the RO sought records dated back to the veteran's date of discharge in 1968, but the oldest records found were dated from June 1980. The veteran himself has submitted private medical reports dated in October 2004 and from March to April 2005. He has not identified any additional records for the RO to obtain on his behalf. He mentioned a couple of private physicians who currently treat his heart condition, and he stated that he submitted their information into the record. Further, VA has not conducted medical inquiry in an effort to substantiate the claims. 38 U.S.C.A. § 5103A(d). Further development in this respect is not required for the following reasons. There is no record of an irregular heartbeat or skin disorder, or complaints relative thereto, during or contemporaneous with service. Further, there is no competent evidence of persistent or recurrent symptoms relative to the heart or skin from the time of service until many years. In short, the evidence does not indicate that a heart condition or skin disorder may be associated with service. Under these circumstances, a medical examination or medical opinion is not required for the service connection claim under 38 C.F.R. § 3.159(c)(4). As there is no indication of the existence of additional evidence to substantiate the claims, no further assistance to the veteran is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection 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. Where a veteran who served for ninety days develops cardiovascular disease or myocarditis to a degree of 10 percent or more within one year from separation from service, service connection may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The presumptive period for these conditions is any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy have a presumptive period of one year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164 (1999). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341, 346 (1994), 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996), and 67 Fed. Reg. 42,600, 42,608 (2002). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Analysis Irregular Heartbeat The veteran claims that he currently has a heart condition manifested by an irregular heartbeat that had onset during service. There is no service medical evidence to show any complaint, finding, treatment, or diagnosis of a heart abnormality, including an irregular heartbeat. At the time of a separation physical examination in July 1968, on a report of medical history, the veteran indicated that he had pain or pressure in the chest, but denied any history of palpitation or pounding heart. The examiner elaborated that as for the chest pain, it was not symptomatic at that time. Examination at that time showed that the heart was clinically normal. After service, VA records show that in June 1980 the veteran complained of an intermittent sensation of his heart fluttering for four days. He reported that he had had an EKG done six months previously at the Health Spa and that he was told he had an irregular beat. He stated that his episodes of palpitations had no relation to activity. An EKG was performed, showing an abnormal rhythm. The impression was supraventricular arrhythmia of questionable significance. He was scheduled the next month for a Holter monitor examination. A July 1980 record indicates an impression of irregular ventricular rhythm with a question as to the significance of this; the examiner stated that perhaps a myocarditis would explain his symptoms, but the veteran was well at that time. Thereafter, private and VA records in the file do not note an irregular heartbeat for over 20 years. For example, there was no heart fluttering noted at the time of a mental health assessment in July 2002. An EKG from Family Practice in October 2004 showed supraventricular arrhythmias. In March 2005, it was noted on a VA outpatient record that the veteran reported that he took medication for congestive heart failure (but he had no old records with him). Although an EKG was ordered at that time, there is no report in the file, if indeed it was performed at the VA. What then appears to be a private EKG report was noted to be borderline, and the veteran underwent a Holter monitor test beginning in late March 2005, which recorded numerous tachycardias over a one day period. Although the evidence shows that the veteran is currently diagnosed with a heart condition manifested by an irregular heartbeat or tachycardia, diagnosed as arrhythmia, there is no record of an irregular heartbeat or heart condition during service or for many years thereafter. Although the veteran testified that he was first found to have an irregular heartbeat during service in Vietnam, there is absolutely no record of any clinical findings pertinent to the heart at any time during service. Moreover, following service, there is no documented evidence - in terms of complaints, clinical findings, and diagnosis - of an irregular heartbeat or heart condition for many years after his separation from service in September 1968. It is not until the veteran was seen for an intermittent fluttering in his chest at the VA in 1980 that the record initially discloses clinical findings pertaining to the heart. Further, the file contains no medical opinion associating the current irregular heartbeat, diagnosed as arrhythmia, to the veteran's period of service, or to the first post-service year. And the absence of continuity of heart-related complaints from service until 1980 is persuasive evidence against continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). As stated, there is simply no documented complaint referable to the heart throughout the veteran's entire period of service until nearly 12 years after service. The Board finds the absence of medical evidence of continuity of symptomatology outweighs any statements of continuity, rendering the veteran's lay evidence less probative than the medical evidence on the question of continuity of symptomatology. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). For this reason, service connection for an irregular heartbeat based on continuity of symptomatology is not established. To the extent that the veteran relates his irregular heartbeat (arrhythmia) to service, where as here the determinative issue involves a question of a medical diagnosis or medical causation, competent medical evidence is required to substantiate the claim. A layperson is competent to identify a medical condition where the condition is a simple one, such as a broken leg as opposed to a form of cancer, but a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation, which is not capable of lay observation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the veteran is competent to describe a "fluttering" of the heart during service, which is not substantiated by the service records. However, his statements and testimony are not competent evidence on the questions of a medical diagnosis and causation of an irregular heart beat as a lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis and medical causation, that is, not capable of lay observation. For this reason, the veteran's statements and testimony do not constitute competent evidence to support the claim. As the Board may consider only independent medical evidence to support its finding as to the questions involving a medical diagnosis or medical causation, which are not capable of lay observation, and as there is no favorable medical evidence to support the claim as articulated above, the preponderance of the evidence is against the claim of service connection for an irregular heartbeat, and the benefit-of- the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Skin Disorder The veteran claims that he currently has a skin condition related to service, specifically due to Agent Orange exposure while serving in Vietnam. Documentation in the file shows that he served in Vietnam from March 1967 to February 1968. He testified that he developed a rash, primarily on his back, during the summer, and described his skin as looking as if he had "been bitten with a hundred bees and [his] skin mucks up." There is no service medical evidence available to show any complaint, finding, history, treatment, or diagnosis of any type of skin disorder during or contemporaneous with service. After service, the private and VA medical records in the file are devoid of any reference to a skin condition for more than three decades. VA outpatient records dated in May 2005 and June 2005 indicate a diagnosis of dermatitis in relation to the leg and penis. Private medical records do not indicate a diagnosis or treatment of a skin disorder. Although the evidence shows that the veteran is currently diagnosed with dermatitis, the disorder was shown to be initially manifest in 2005, more than 35 years after his discharge from service in 1968. The absence of documented symptoms for more than 35 years after service weighs against the claim. Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). The Board finds the absence of medical evidence of continuity of symptomatology outweighs the veteran's statements of continuity, rendering the lay evidence less probative than the medical evidence on the question of continuity of symptomatology. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). For this reason, the preponderance of the evidence is against the claim of service connection for the claimed skin disorder based on continuity of symptomatology under 38 C.F.R. § 3.303(b). Regarding whether herbicide exposure while serving in Vietnam may have resulted in the veteran's skin disorder, it is noted that dermatitis is not among the listed diseases associated with exposure to herbicides, for which service connection on a presumptive basis is warranted under 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). And there is no medical evidence that dermatitis is actually caused by exposure to Agent Orange. In the absence of continuity of symptomatology, although the veteran is competent to describe the features or symptoms of a skin condition, which are capable of lay observation, where as here the determinative issue involves a question of medical causation, competent medical evidence is required to substantiate the claim because a lay person is not qualified through education, training, and expertise to offer an opinion on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For this reason, the veteran's statement and testimony do not constitute competent evidence to support the claim. As the Board may consider only independent medical evidence to support its finding as to a question involving a medical causation, which are not capable of lay observation, and as there is no favorable medical evidence to support the claim as articulated above, the preponderance of the evidence is against the claim of service connection for a skin disorder, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for an irregular heartbeat is denied Service connection for a skin disorder is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs