Citation Nr: 0812045	
Decision Date: 04/11/08    Archive Date: 04/23/08	

DOCKET NO.  05-14 448A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for coronary artery 
disease, to include as secondary to service-connected 
diabetes mellitus.   

2.  Entitlement to service connection for a chronic skin 
disorder, claimed as due to exposure to herbicides.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel


INTRODUCTION

The veteran had active service from July 1964 to July 1968.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 2003 rating decision of the 
VARO in St. Petersburg, Florida, that, in pertinent part, 
denied entitlement to service connection for coronary artery 
disease secondary to diabetes mellitus and for a skin disease 
associated with herbicide exposure.  

A review of the evidence of record reveals that service 
connection is in effect for the following:  diabetes 
mellitus, rated as 20 percent disabling; peripheral 
neuropathy of the left lower extremity, rated as 20 percent 
disabling; entrapment peripheral neuropathy of the right 
upper extremity, rated as 10 percent disabling; entrapment 
peripheral neuropathy of the left upper extremity, rated as 
10 percent disabling; and peripheral neuropathy of the right 
lower extremity, rated as 10 percent disabling.  With 
consideration of the bilateral factor, a combined disability 
rating of 60 percent has been in effect since March 23, 2007.  

For reasons which will be set forth in a Remand at the end of 
the decision below, the matter of the veteran's entitlement 
to service connection for coronary artery disease is being 
deferred pending additional development.  The veteran will be 
notified when further action is required.  


FINDINGS OF FACT

1.  The medical evidence of record indicates that the veteran 
has been diagnosed with contact dermatitis related to sun 
exposure.  

2.  The competent medical evidence of record reflects that 
any current skin disorder is not related to the veteran's 
military service, to include presumed exposure to herbicides 
in Vietnam.  


CONCLUSION OF LAW

The veteran does not have a chronic skin disorder that was 
incurred in or aggravated by his active military service.  
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 CONCLUSION

The enactment of the Veterans Claims Assistance Act of 2000 
(VCAA) codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 
(West 2002 & Supp. 2007), significantly changed the law prior 
to the pendency of this claim.  VA has issued final 
regulations to implement the statutory changes.  See 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).  The 
VCAA provisions include an enhanced duty to notify a claimant 
of the information and evidence necessary to substantiate a 
claim for VA benefits, and they redefine the obligations of 
VA with respect with the duty to assist the veteran with the 
claim.  In the instant case, the Board finds that VA 
fulfilled its duties to the veteran under the VCAA.  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 
notice from VA 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 his possession that 
pertains to the claim in accordance with the provisions of 
38 U.S.C.A. § 3.159(b)(1).  This notice must be provided 
prior to an initial unfavorable decision on a claim by the 
agency of original jurisdiction (AOJ).  Mayfield v. 
Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006); Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  

The VCAA duty to notify was satisfied by way of letters sent 
to the veteran in October 2003, December 2006, and 
February 2007.  Those communications informed the veteran of 
what evidence was required to substantiate his claim and of 
his and VA's respective duties for obtaining evidence.  He 
was also asked to submit evidence and/or information in his 
possession to the AOJ.  In addition, the most recent 
communication included notice that a disability rating and an 
effective date for an award of benefits would be assigned if 
service connection was awarded.  The Board thus finds that 
the veteran was effectively informed to submit all relevant 
evidence in his possession, and that he received notice of 
the evidence needed to substantiate his claim, the evidence 
by which he would obtain such evidence, and the allocation of 
responsibilities between himself and VA in obtaining such 
evidence.  See Mayfield, 19 Vet. App. at 109.  

With regard to proper VCAA notice preceding an initial 
unfavorable decision, the October 2003 letter to the veteran 
preceded the December 2003 rating action.  

VA also has a duty to assist the veteran in obtaining 
evidence necessary to substantiate his claim.  38 U.S.C.A. 
§ 5103A.  This duty includes assisting the veteran in 
obtaining records and providing medical examinations or 
obtaining medical opinions when such are necessary to make a 
decision on the claim.  38 U.S.C.A. § 5103A (setting forth 
the Secretary's various duties to claimant).  

VA informed the veteran of his duty to assist in obtaining 
records in support of evidence, and the veteran received VA 
examinations in March 2005 and February 2007.  These were 
thorough in nature and more than adequate for the purposes of 
deciding this claim.  Additional medical evidence has been 
associated with the claims file.  The Board therefore finds 
that medical evidence of record is sufficient to resolve this 
appeal, and VA has no further duty to provide an examination 
with opinion with regard to the claim for service connection 
for a chronic skin disorder.  38 U.S.C.A. § 5103A(d); 
38 C.F.R. § 3.159(c)(4).  

Based on the foregoing, the Board finds that VA fulfilled its 
VCAA duties to notify and assist the veteran, and, thus, no 
additional assistance notification is required.  The veteran 
has suffered no prejudice that would warrant a remand with 
regard to service connection for a skin disorder, and his 
procedural rights have not been abridged.  See 
Bernard v. Brown, 4 Vet. App. 392 (1992).  

Pertinent Laws and Regulations

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. 
§ 3.303 (2007).  

Service connection may also be granted for a disability shown 
after service, when all the evidence, including that 
pertinent to service, shows that it was incurred in service.  
See 38 C.F.R. § 3.303(d) (2007).  

The United States Court of Appeals for Veterans Claims 
(Court) has held that for service connection to be awarded, 
there must be (1) medical evidence of a current disability; 
(2) medical evidence, or in certain circumstances, lay 
evidence of an inservice incurrence or aggravation of a 
disease or injury; and (3) medical evidence of a nexus 
between the claimed inservice disease or injury and the 
present disease or injury.  Coburn v. Nicholson, 19 Vet. App. 
427 (2006); Disabled American Veterans v. Secretary of 
Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005); Shedden v. 
Principi, 381 F. 3d 1163, 1166 (Fed. Cir. 2004).  If the 
veteran fails to demonstrate any one element, denial of 
service connection will result.  

The law and applicable regulatory provisions pertaining to 
Agent Orange exposure, expanded to include all herbicides 
used in Vietnam, provide that a veteran who, during active 
military, naval, or air service, served in the Republic of 
Vietnam during the Vietnam Era shall be presumed to have been 
exposed during such service to an herbicide agent, unless 
there is affirmative evidence to establish that the veteran 
was not exposed to any such agents during that service.  
38 C.F.R. § 3.307(a)(6)(ii).  

The laws and regulations further stipulate that there are 
diseases for which service connection may be presumed due to 
exposure to herbicide agents.  38 U.S.C.A. § 1116 (West 
2002); 38 C.F.R. § 3.309(e).  These include chloracne or 
other acneform diseases consistent with chloracne.  

In Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994), the 
United States Court of Appeals for the Federal Circuit held 
that when a veteran is found not to be entitled to the 
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.  See also Brock v. Brown, 10 Vet. App. 155 
(1997) (holding that the rationale employed in Combee also 
applies to claims based on exposure to Agent Orange).  

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 such disability was the result of 
active service under 38 U.S.C.A. § 1110 and 38 C.F.R. 
§ 3.303(d).  

As noted above, in order to establish service connection, 
there must be (1) evidence of a current disability; (2) 
evidence of the incurrence or aggravation of a disease or 
injury in active service; and (3) medical evidence of a nexus 
between the claimed inservice disease or injury and the prior 
disability.  See Coburn v. Nicholson, 19 Vet. App. 427, 431 
(2006).  

With respect to the first prong cited above, there is medical 
evidence of the presence of a skin disorder, diagnosed by VA 
in March 2005 as contact dermatitis.  The Board observes, 
however, that there is no medical evidence of chloracne or 
any other disorder which has been associated with herbicide 
exposure per the provisions of 38 C.F.R. § 3.309(e).  

With respect to the second prong cited above, evidence of 
inservice incurrence of a disease or injury, the Board will 
separately address the disease and injury.  

With respect to inservice disease, the service medical 
records do not show the presence of any skin disorder.  

The post service medical evidence includes the report of an 
October 2003 Agent Orange evaluation by VA.  The veteran 
stated that since he left service he worked as a house 
painter for 15 years and also had work experience as a 
photographer.  He stated that he developed a fungal infection 
in the feet when he was in Vietnam.  He reported he was 
seeing a physician for this.  Notation was made that he might 
have a latex sensitivity since he found that exposure to 
paints and solvents aggravated his problem considerably, as 
well as heat exposure.  Reference was also made to perianal 
dermatitis as well.  Clinical examination showed perianal 
dermatitis.  There was also minimal evidence of 
dermatophytosis pedis.  There were scars involving both upper 
extremities associated with scratching.  A pertinent 
impression was made of "chronic dermatitis involving the 
arms and legs, yeast suggested with the lower extremities, 
but latex sensitivity also a possibility in view of the 
association with his painting occupation."  

Additional evidence includes the report of a VA examination 
accorded the veteran in March 2005.  The claims file was 
reviewed by the examiner.  Notation was made that in July 
2001 the veteran was seen by his primary care doctor for a 
skin rash which was very itchy and "appears on flexor surface 
of both forearms every summer for the last three years..."  In 
September 2003 a dermatology consult was made for 
excoriations over the arms.  In March 2004 the veteran 
demonstrated extensive erythematous papular erosion on both 
arms and this "looks like a typical contact dermatitis 
related to sun exposure."  Following examination, a diagnosis 
was made of "contact dermatitis related to sun exposure, not 
as likely as not secondary to herbicide exposure."  

Additional evidence includes the report of a skin disease 
examination accorded the veteran by VA in February 2007.  The 
claims file was reviewed by the examiner.  On examination, 
with regard to dermatitis, eczema, dermatophytosis, 
psoriasis, and the like when asked to specify if any exposed 
areas were affected, the examiner said "n/a."  As for acne or 
chloracne, it was again indicated "n/a."  The examination 
diagnosis was diabetic foot ulcer, fully resolved.  

With respect to inservice injury, the veteran's health record 
reflects that his active service included time in Vietnam.  
It is therefore presumed that he was exposed to Agent Orange 
in Vietnam, in the absence of affirmative evidence to the 
contrary.  See 38 C.F.R. § 3.307(a)(6).  Therefore, the 
second prong with regard to service connection has been met 
to that extent.  

With regard to the third prong, as discussed in the laws and 
regulations section above, there are essentially two ways by 
which service connection can be granted:  Presumptive service 
connection by way of 38 C.F.R. § 3.309(e); and direct service 
connection by way of 38 C.F.R. § 3.303(d) and Combee.  

First, there is the matter of the statutory presumption which 
attaches to it to Agent Orange exposure.  However, because 
dermatitis is not among the disabilities listed in 38 C.F.R. 
§ 3.309(e), presumptive service connection due to Agent 
Orange exposure is not warranted.  Accordingly, the Board 
will move on to discuss whether service connection may be 
awarded on a direct basis.  See Combee.  

The physician who conducted the Agent Orange evaluation of 
the veteran in October 2003 seemed to point to the veteran's 
occupation as a painter with his skin problems.  The 
physician did not attribute the veteran's skin problems to 
his active service, to include his time in Vietnam.  

There is no competent medical evidence to the contrary.  The 
veteran has provided no medical documentation indicating a 
causal nexus between any skin disorder, to include chloracne, 
on the one hand, and his active service many years ago, to 
include his time in Vietnam and his presumed exposure to 
herbicide agents while serving there.  

To the extent that the veteran contends he has a current skin 
disorder that is related to his military service, it is well 
established that lay persons without medical training, such 
as the veteran, are not competent to opine on medical matters 
such as etiology.  See Espiritu v. Derwinski, 
2 Vet. App. 492, 494 (1992); See also 38 C.F.R. § 3.159(a)(1) 
(competent medical evidence means evidence provided by a 
person who is qualified through education, training, or 
experience to offer medical diagnoses, statements, or 
opinions).  Accordingly, the veteran's contentions with 
regard to a causal connection are not competent medical 
evidence.  

In summary, for the reasons and bases expressed above, the 
Board concludes that there is a preponderance of evidence 
against the veteran's claim of entitlement to service 
connection for a chronic skin disorder, to include his due to 
herbicide exposure in Vietnam.  Accordingly, the benefit 
sought on appeal is denied.  


ORDER

Service connection for a chronic skin disorder, to include 
his due to herbicide exposure, is denied.  


REMAND

A review of the record reveals that service connection is in 
effect for diabetes mellitus and various disabilities 
secondary thereto.  The veteran claims that he also has 
coronary artery disease that is secondary to the diabetes 
mellitus.  The veteran was accorded an examination of the 
heart by VA in March 2005.  The claims file was reviewed by 
the examiner.  A diagnosis was made of idiopathic dilated 
cardiomyopathy of unknown etiology.  It was noted that the 
diagnosis of coronary artery disease had never been 
established since the veteran refused to undergo any further 
cardiac evaluation, including heart catheterization.  The 
physician's assistant stated that "therefore, the diagnosis 
of coronary artery disease would be pure speculation on the 
part of the examiner and cannot be made at this time."  The 
Board notes that the medical evidence of record includes the 
report of the October 2003 Agent Orange evaluation referred 
to above.  At that time, clinical evaluation of the chest and 
the heart was normal.  Nevertheless, the examination 
impressions included coronary artery disease.  It was noted 
that laboratory studies revealed high blood sugars with 
elevated total cholesterol, "LDL and depressed HDL with 
elevated triglyceride, quite consistent particularly in view 
of the past history of hypertension and coronary artery 
disease."  

The Board believes that one more attempt should be made in 
order to determine whether a causal nexus links any current 
coronary artery disease to the veteran's active service, or 
to his service-connected diabetes mellitus.  

In view of the foregoing, this portion of the case is 
REMANDED for the following:  

1.  The AMC/RO must review the record and 
ensure compliance with all notice and 
assistance requirements set forth in the 
Veterans Claims Assistance Act of 2000.  

2.  The veteran must be afforded a VA 
cardiology examination for the purpose of 
determining the likely etiology of any 
current coronary artery disease.  The 
examiner should review relevant portions 
of the claims file and indicate such in 
the examination report.  Following review 
of the relevant medical evidence in the 
claims file, physical examination, and 
any laboratory tests that are deemed 
necessary, the examiner is requested to 
opine as to whether it is at least as 
likely as not (50 percent or greater 
probability) that any current coronary 
artery disease is causally linked to the 
veteran's active service or to his 
service-connected diabetes mellitus.  The 
physician is advised that the term "as 
likely as not" does not mean within the 
realm of possibility.  Rather, it means 
that the weight of medical evidence both 
for and against a conclusion is so evenly 
divided that it is medically sound to 
find in favor of causation as defined 
against causation.  More likely and as 
likely support the contended causal 
relationship; less likely weighs against 
a claim.  The examiner is requested to 
provide a rationale for any opinion 
expressed.  The examiner is advised that 
if a conclusion cannot be reached without 
reserve to speculation, he or she should 
so indicate it in the examination report.  

3.  Then, after completion of any other 
notice or development indicated by the 
evidence of record, with consideration of 
all evidence added to the record 
subsequent to the last supplemental 
statement of the case, the AMC/RO should 
readjudicate the claim.  If the veteran 
remains dissatisfied with the outcome, 
the AMC/RO should issue an appropriate 
supplemental statement of the case and 
provide an opportunity for response.  

By this REMAND, the Board intimates no opinion as to any 
final outcome warranted.  The veteran is placed on notice as 
to the importance of cooperating with the examination and any 
testing that might be deemed advisable for the purpose of 
obtaining as definitive a determination as possible.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 
U.S.C. §§ 5109B, 7112).


	                        
____________________________________________
	V. L. JORDAN
	Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs