Citation Nr: 0810673 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-24 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for skin cancer. 3. Entitlement to service connection for a sleep disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from April 1968 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the above claims. FINDINGS OF FACT 1. Hypertension was first manifested during the veteran's period of active service. 2. Skin cancer has not been shown to be etiologically related to his period of active service; nor was it manifested to a compensable degree during any applicable presumptive period. 3. A sleep disorder has not been shown to be etiologically related to his period of active service; nor was it manifested to a compensable degree during any applicable presumptive period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. The criteria for the establishment of service connection for skin cancer are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303 (2007). 3. The criteria for the establishment of service connection for a sleep disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into four elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; (3) that VA will attempt to obtain; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). By letters dated in May 2004, March 2006, and April 2007, the veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was, in essence, told to submit all relevant evidence he had in his possession. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. With respect to the Dingess requirements, the claimant was provided with notice of the type of evidence necessary to establish a disability rating or effective date by the letter dated in March 2006. Adequate notice has been provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The veteran's relevant service and VA medical treatment records have been obtained. He has been provided VA medical examinations. There is no indication of any additional, relevant records that the RO failed to obtain. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2007). Service connection for cardiovascular-renal disease may be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2007); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence that establishes that the veteran was not exposed to any such herbicide agent. 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2007); 38 C.F.R. § 3.307(a)(6)(iii) (2007). "Service in the Republic of Vietnam" means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2007). The following diseases are deemed associated with herbicide exposure, under current VA law: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), including Note 2 (2003). 66 Fed. Reg. 23, 166- 23,169 (May 8, 2001). The foregoing diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 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 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d) are also satisfied. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain specific disorders, based upon extensive scientific research. See, e.g., Notices, 68 Fed. Reg. 27,630-41 (2003); 64 Fed. Reg. 59,232-243 (1999); 61 Fed. Reg. 57,586-589 (1996). However, the United States Court of Appeals for the Federal Circuit has determined that a veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Hypertension Hypertension means persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90. Dorland's Illustrated Medical Dictionary at 635 (26th ed. 1981). For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). The service medical records include the report of the veteran's August 1967 induction examination. Upon clinical evaluation, his heart and vascular system were normal. His blood pressure was 132/74. He denied a history of high blood pressure. At the time of the February 1970 separation examination, his heart and vascular system were again normal. However, his blood pressure was 138/90. He reported a history of having experienced high or low blood pressure. Subsequent to service, private medical records from Madrona Family Medicine, P.S., dated from October 2000 to November 2006, showed intermittent treatment for symptoms associated with hypertension. Numerous elevated blood pressure readings were demonstrated during this time period. A VA Agent Orange Protocol Examination report dated in August 2004 included the veteran's report of a history of hypertension. Blood pressure was 180/110, 168/110, and 160/105. The diagnosis was hypertensive cardiovascular disease with non-insulin-dependent diabetes mellitus, type 2. The hypertension was said to be secondary to the diabetes. A private medical record from W. F., M.D., dated in May 2007, showed blood pressure readings of 160/100 and 160/90. A VA examination report dated in March 2007 shows that the veteran reported a history of hypertension and diabetes mellitus, for which he had been treated with medication for about 12 years. Blood pressure readings were 160/100, 160/102, and 160/100. The diagnosis was hypertension. The examiner opined that following a review of the veteran's medical records, his hypertension was less likely caused by his diabetes. The examiner indicated that it appeared that the veteran had hypertension for many years prior to the diabetes mellitus, to include in service in February 1970, at which time his blood pressure reading was 158/90. While the August 2004 VA Agent Orange Protocol Examination and the March 2007 VA examination report appear to disagree as to whether the veteran's currently diagnosed hypertension is secondary to the service-connected diabetes mellitus, resolving reasonable doubt in the veteran's favor, the Board concludes that service connection for hypertension on a direct basis is warranted. The evidence of elevated blood pressure readings during service, the intermittent post- service elevated blood pressure readings, and the current diagnosis of hypertension, coupled with the VA examiner's opinion in March 2007 that the veteran had hypertension for many years, to include in service in February 1970, provide sufficient support to grant the veteran's claim for service connection for hypertension on a direct basis. Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Therefore, resolving all reasonable doubt in favor of the veteran, the Board concludes that the veteran's currently diagnosed hypertension was likely first manifested during his period of active service. See Ashley, 6 Vet. App. at 59, citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for hypertension is granted. Skin cancer The veteran contends that he has skin cancer that is related to his period of active service. He asserts that he was exposed to herbicides during his tour of duty in the Republic of Vietnam, and that this caused his current skin cancer. The veteran's August 1967 induction examination showed that his skin and lymphatics were normal. He reported a history of skin diseases, but the examiner remarked that these complaints were related to a staph infection of the legs which had resolved. At the time of his February 1970 separation examination, his skin and lymphatics were again normal. He reported a history of skin diseases. Subsequent to service, private medical records from C. L. H., M.D., Ph.D., dated from April 2003 to September 2003, showed treatment of the veteran for lesions on his face and head. Diagnostic testing revealed assessments of squamous cell carcinoma, actinic keratosis, and hemangioma. At the time of the August 2004 VA Agent Orange Protocol Examination, the veteran reported a history of skin cancer of the right cheek which had been excised in the spring of 2003. Physical examination revealed a two centimeter by eight millimeter keloid scar of the right cheek. The diagnosis was squamous cell carcinoma of the right cheek, excised in 2003. After a careful review of the evidence of record, it is found that entitlement to service connection for skin cancer, assessed to be squamous cell carcinoma, has not been established. Since the veteran served in Vietnam, his exposure to Agent Orange is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2007). However, squamous cell carcinoma is not one of the diseases listed at 38 C.F.R. § 3.309(e) as being presumptively related to such exposure. Therefore, service connection under the provisions of 38 C.F.R. § 3.309(e) cannot be granted. While the veteran may still establish service connection for his skin cancer based on Agent Orange exposure by affirmative competent evidence showing such etiology (see Combee, supra), he has not presented any such competent evidence. As skin cancer was not manifested in the first post service year, the chronic disease (for malignant tumors) presumptive provisions of 38 U.S.C.A. § 1112 do not apply. The Board has considered the veteran's statements in support of his claim that he has skin cancer as a result of his service. While he is certainly competent to describe the extent of his current symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Additionally, there is no competent medical evidence of record relating the claimed skin cancer to service or to any incident therein. The earliest medical evidence of the veteran's skin cancer is in 2003, more than 33 years after he was discharged from service. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service, can be considered as evidence against a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, the veteran's claim of entitlement to service connection for skin cancer is denied. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for skin cancer. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. Sleep disorder The veteran contends that he has a sleep disorder that is related to his period of active service. He asserts that he was exposed to herbicides during his tour of duty in the Republic of Vietnam, and that this caused his current sleep disorder. The veteran's service medical records are negative of any findings of a sleep disorder during his period of active service. Neither his August 1967 induction examination nor the February 1970 separation examination refers to a sleep disorder. He did not report a history of frequent trouble sleeping during either examination. Subsequent to service, the private medical records from Madrona Family Medicine, P.S., dated from October 2000 to November 2006, show intermittent treatment for symptoms associated with sleep apnea. A private medical record from North Kitsap ENT dated in May 2001 shows that the veteran was evaluated for reported sleep apnea. The impression was severe obstructive sleep apnea, currently undergoing treatment. The August 2004 VA Agent Orange Protocol Examination report shows that the veteran reported having sleep apnea since 2002. The diagnosis was sleep apnea. A VA psychiatric disorders examination report dated in March 2007 shows that the veteran, in pertinent part, reported sleep impairment manifested by middle and terminal insomnia, wherein he would sleep four to five hours nightly. The examiner concluded that the veteran's sleep problems were symptoms of his post-traumatic stress disorder and major depression, but not related to his appendectomy during service. An addendum to the March 2007 VA psychiatric disorders examination report, also dated in March 2007, shows that the medical evidence of record was reviewed by the examiner in conjunction with formulating his opinion. The examiner indicated that the veteran's sleep problems were likely the result of his sleep apnea, and that this was unrelated to his military experiences. After a careful review of the evidence of record, it is found that entitlement to service connection for a sleep disorder has not been established. Sleep apnea is not one of the diseases listed at 38 C.F.R. § 3.309(e) as being presumptively related to such exposure. Therefore, service connection under the provisions of 38 C.F.R. § 3.309(e) cannot be granted. The Board has considered the veteran's statements in support of his claim that he has a sleep disorder as a result of his service. While he is certainly competent to describe the extent of his current symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation. Cromley, 7 Vet. App. at 379; Espiritu, 2 Vet. App. at 495. Additionally, there is no competent medical evidence of record relating the claimed sleep disorder to service or to any incident therein. The earliest medical evidence of the veteran's sleep disorder is in 2000, more than 30 years after he was discharged from service. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service, can be considered as evidence against a claim. Maxson, 230 F.3d at 1333. Accordingly, the veteran's claim of entitlement to service connection for a sleep disorder is denied. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim of entitlement to service connection for a sleep disorder. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER Service connection for hypertension is granted. Service connection for skin cancer is denied. Service connection for a sleep disorder is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs