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