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