Citation Nr: 0810368 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-38 918A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a skin rash claimed as due to the exposure to herbicides. 2. Entitlement to service connection for weakness of lower extremities claimed as due to the exposure to herbicides. 3. Entitlement to service connection for foot problems claimed as due the exposure to herbicides. 4. Entitlement to service connection for cardiovascular disorder claimed as due to the sure to herbicides and as secondary to the service-connected post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from November 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the RO. The veteran requested and was scheduled for a VA videoconference hearing in July 2007, but failed to report and provided no explanation for not appearing. The Board will therefore proceed with his appeal as though the request for a hearing had been withdrawn. See 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues on appeal has been accomplished. 2. The veteran is not shown to have manifested complaints or findings referable to a skin rash, weakness of the lower extremities, a foot problem or a cardiovascular disorder in service or for many years thereafter. 4. The veteran currently is not shown to have a skin rash, weakness of lower extremities or a foot disorder that can be causally linked to any documented event or incident of his active service or presumptively linked to Agent Orange exposure therein. 5. The veteran is not shown to have manifested complaints or findings referable to cardiovascular disease in service or for many years thereafter. 6. The currently demonstrated arteriosclerotic heart disease cannot be presumptively linked to herbicide exposure or found to be causally related to another event or incident of the veteran's period of active service including that performed in the Republic of Vietnam. 7. The medically documented arteriosclerotic cardiovascular disease is not shown to have been caused or aggravated by the veteran's service-connected PTSD. CONCLUSIONS OF LAW 1. The veteran does not have a skin disability due to disease or injury that was incurred in or aggravated by active service: nor may any skin rash be presumed to be due to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a) (2007). 2. The veteran does not have a foot disability due to disease or injury that was incurred in or aggravated by active service: nor may any be presumed to be due to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a) (2007). 3. The veteran does not have a disability manifested by weakness of the lower extremities due to disease or injury that was incurred in or aggravated by active service: nor may any be presumed to be due to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a) (2007). 4. The veteran's cardiovascular disability is not due to disease or injury that was incurred in or aggravated by active service; nor may any be presumed to have been incurred therein; nor is any proximately due to or the result of the service-connected PTSD: nor may any be presumed to be due to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(a), 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2005). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. In March 2005, prior to the rating decision on appeal, the RO sent the veteran a letter informing him that to establish entitlement to service-connected compensation benefits the evidence must show credible supporting evidence of a disease or injury that began in or was made worse during service, or that there was an event in service which caused injury or disease; a current physical or mental disability; and a relationship between the current disability and an injury, disease or event in service. The veteran was afforded time to respond before the RO issued the June 2005 rating decision on appeal. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim and has been afforded ample opportunity to submit such information and evidence. The March 2005 letter also satisfies the statutory and regulatory requirement that VA notify a claimant, what evidence, if any, will be obtained by the claimant and what if any evidence will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The March 2005 letter and an April 2007 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letters also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. The letter advised the veteran that it was his responsibility to provide the RO with enough information about the records to enable the RO to request them from the person or agency having them, and advised the veteran that it was his responsibility to make sure the records were received by VA. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained hereinabove, the first three content-of-notice requirements have been met in this appeal. The Board notes that the record does not show that the veteran was advised of the fourth content-of-notice requirement under Pelegrini (request that the claimant provide any evidence in his possession that pertains to the claim). However, even though the veteran was not expressly advised to "give us all you've got" the Board finds that this requirement has been constructively satisfied. As noted, the veteran has been advised of the evidence required to support his claims for service connection and of the evidence of record. The Board finds that he has accordingly been constructively invited to give VA all the relevant evidence in his possession not already of record at VA. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran before the rating action on appeal. However, the Board finds that any arguable lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, any arguable delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claims on appeal, and he was afforded an opportunity to submit such information and/or evidence. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claims is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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 (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the first Dingess element (veteran status) is not at issue, and as noted above the March 2005 letter advised the veteran of the second and third Dingess elements (existence of a disability and connection between the veteran's service and that disability). In regard to fourth and fifth Dingess elements (degree of disability, and effective date pertaining to the disability), the RO advised the veteran of these elements in a July 2007 letter. The Board's decision below denies service connection for the claimed disabilities, so no degree of disability or effective date will be assigned. There is accordingly no possibility of prejudice to the veteran under the notice requirements of Dingess. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service medical records and post-service VA medical records have been associated with the claims file. The veteran has not identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. The Board notes that VCAA states that VA will afford a claimant an examination if VA determines it is necessary to decide the claim, which clearly makes the decision discretionary to VA. 38 C.F.R. § 3.159(c)(4)(i) (emphasis added). The four elements for consideration of a medical examination in a service connection case are: (1) there is competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) there is evidence that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms listed in 38 C.F.R. §§ 3.309. 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; (3) there is evidence indicating the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability, and (4) the medical evidence currently of record is insufficient for VA to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i). In addition, a medical examination is not required if the veteran has not presented a prima facie case for the benefit claimed. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium). The Board finds that the veteran has not presented a prima facie case for the benefits claimed and does not meet the herein above mentioned criteria for medical examination. The veteran was scheduled for a hearing with the Board but failed to appear. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims of service connection. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). The Board notes that there is a presumption of exposure to herbicides if claimant served in Vietnam, even if there is no record of treatment in service. 38 U.S.C.A. §§ 1113, 1116; 38 C.F.R. § 3.307. However, presumption exists only for diseases listed in 38 C.F.R. § 3.309(e). Notwithstanding the presumption, the veteran still can establish service connection for a disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). Skin rash as a result of exposure to herbicides The veteran asserts that he has a skin rash due to the exposure to herbicides during service in the Republic of Vietnam. However, a careful review of the medical evidence shows no diagnosis of a skin rash in service or thereafter. The Board notes that, on the entrance medical examination for service, the veteran reported having had a skin disorder, but the no skin condition was identified by examination. Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability and in the absence of a proof of present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This is the essence of the first part of the Hickson analysis. Thus, evidence of current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (F.3d 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)). In McClain, the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Id. at 321. However, there is no medical evidence to support the veteran's lay assertions of having a current skin rash that can be causally linked to any event or incident of his active service. The Board notes that chloracne or other acneform disease consistent with chloracne are presumptive diseases under 38 C.F.R. § 3.309(e); however, the presumption cannot be favorably applied without a current diagnosis in this case. Given these facts, the Board finds that the claim of service connection for skin rash must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). Weakness of the lower extremities as a result of exposure to herbicides Initially, the Board notes that the veteran is not shown to have manifested complaints or findings of weakness of the lower extremities in service or for many years thereafter. There also is no competent evidence of record to support his assertions of having a disability manifested by weakness in the lower extremities due to any established event or incident of the veteran's service. Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability and in the absence of a proof of present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This is the essence of the first part of the Hickson analysis. In addition, the Board notes that, without more, his reports of having weakness of the lower extremities alone cannot be linked to a presumptive disease listed in 38 C.F.R. § 3.309(e) or otherwise shown to be due to documented Agent Orange exposure during his service in the Republic of Vietnam. Given these facts, the Board finds that the claim of service connection for weakness of the lower extremities must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). Claimed foot problems as a result of exposure to herbicides The veteran asserts that he has foot problems as a result of in-service exposure to herbicides. However, the Board finds that, after careful review of the veteran's in-service and post-service treatment records, he has never been treated for or diagnosed with a foot problem due to a documented disease on injury in service. Without a current diagnosed foot problem, the Board notes that Congress specifically limits entitlement to service- connected disease or injury where such cases have resulted in a disability and in the absence of a proof of present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This is the essence of the first part of the Hickson analysis. Thus, evidence of current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (F.3d 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)). In McClain, the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Id. at 321. Here, there is no medical evidence that the veteran had a disability of the feet at the time he filed his claim or during the pendency of the appeal. The Board notes that, generally, a foot problem cannot be a presumptive disease listed in 38 C.F.R. § 3.309(e) and, without specificity as to the current diagnosis, the Board could not presumptively grant service connection. Given these facts, the Board finds that the claim of service connection for foot problems must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). Cardiovascular disorder as a result of exposure to herbicides and to include as secondary to service-connected PTSD The veteran currently is shown by the medical evidence to have angina with a history of a myocardial infarction, but he is not shown to have manifested complaints or findings of a cardiovascular or heart disorder until many years after service. The Board notes that a presumption of exposure to herbicides exists only for diseases listed in 38 C.F.R. § 3.309(e); a listing that does not include cardiovascular disease in general or a arteriosclerotic heart disorder specifically. Thus, the current cardiovascular disease cannot be presumptively linked to claimed in-service exposure to herbicides. Notwithstanding the presumption, the veteran still can establish service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). The veteran in this regard has not submitted any medical evidence to support his lay assertions of having current cardiovascular disease due documented Agent Orange exposure in service. Service connection may also be granted for a disability that is proximately due to or the result of service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service- connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). After a careful review of the record, the Board finds no basis in the medical record to support a finding that the veteran's currently demonstrated arteriosclerotic cardiovascular disease was caused or aggravated by his service-connected PTSD. When a service-connected disability is asserted to have caused or aggravated a secondary disability, there must be competent medical evidence of such causation or aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994). To prevail on the basis of secondary causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and a service-connected disability. Wallin, supra. In this case, there is no competent evidence establishing a nexus between the claimed cardiovascular disorder and his service-connected PTSD. The Board notes that a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Given these facts, the Board finds that claim of service connection for a cardiovascular disorder, as due to the exposure to herbicides or as secondary to service-connected disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for a claimed skin rash as due to the exposure to herbicides is denied. Service connection for claimed weakness of lower extremities as due to the exposure to herbicides is denied. Service connection for claimed foot problems as due to the exposure to herbicides is denied. Service connection for a cardiovascular disorder as due to the exposure to herbicides or as secondary to service- connected PTSD is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs