Citation Nr: 0812390 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-24 574A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for ear popping, including as secondary to tear gas exposure. 2. Entitlement to service connection for a sore throat, including as secondary to tear gas exposure. 3. Entitlement to service connection for a sinus disability, including as secondary to tear gas exposure. 4. Entitlement to service connection for a skin disability of the hands, including as secondary to tear gas exposure. 5. Entitlement to service connection for a skin disability of the lower lip, including as secondary to tear gas exposure. 6. Entitlement to service connection for a skin disability of the scalp, including as secondary to tear gas exposure. 7. Entitlement to service connection for onychomycosis of the right great toenail, including as secondary to service- connected residuals of a fracture of the right great toe. 8. Entitlement to service connection for a left great toe disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from December 1956 to November 1957. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. There is no competent medical nexus evidence of record indicating the veteran has an ear popping disability that is causally or etiologically related to his service in the military. 2. There is no competent medical nexus evidence of record indicating the veteran has a sore throat disability that is causally or etiologically related to his service in the military. 3. There is no competent medical nexus evidence of record indicating the veteran has a sinus disability that is causally or etiologically related to his service in the military. 4. There is no competent medical nexus evidence of record indicating the veteran has a skin disability of the hands that is causally or etiologically related to his service in the military. 5. There is no competent medical nexus evidence of record indicating the veteran has a skin disability of the lower lip that is causally or etiologically related to his service in the military. 6. There is no competent medical nexus evidence of record indicating the veteran has a skin disability of the scalp that is causally or etiologically related to his service in the military. 7. There is no competent medical nexus evidence of record indicating the veteran has onychomycosis of the right great toenail that is causally or etiologically related to his service in the military or a service-connected disability. 8. There is no competent medical nexus evidence of record indicating the veteran has chronic residual disability of an injury of the left great toe, or onychomycosis of the left great toenail, that is causally or etiologically related to his service in the military. CONCLUSIONS OF LAW 1. A chronic disability manifested by ear popping was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304 (2007). 2. A throat disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 3. A sinus disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304 (2007). 4. A skin disability of the hands was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304 (2007). 5. A skin disability of the lower lip was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304 (2007). 6. A skin disability of the scalp was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304 (2007). 7. Onychomycosis of the right great toenail was not incurred in, or aggravated by, active service, nor proximately due to, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 8. A left great toe disability, to include onychomycosis of the left great toenail, was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA satisfied its duty to notify by means of an October 2002 letter from the agency of original jurisdiction (AOJ) to the appellant. This letter informed the appellant of what evidence was required to substantiate his claims for service connection. This letter also informed him of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to his claims. In addition, a March 2006 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. However, because the instant decision denies the veteran's claims, no disability rating or effective date will be assigned. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist With regard to the duty to assist, the veteran's complete service medical and personnel records are not currently on file, despite attempts by the RO to obtain this evidence. According to correspondence associated with the veteran's claims file, repeated attempts to locate the relevant service medical and personnel records have proven futile, and no additional records were found or are to be had. The veteran was informed in June 2006 that the RO was unable to obtain his records. It appears the missing records were destroyed in a 1973 fire at the National Personnel Records Center (NPRC) - a military records repository, and that attempts to reconstruct these records were unsuccessful. Likewise, the RO also sought to confirm the veteran's assertions by means of multiple civilian sources, but no records confirming the events of the veteran's service were available. When, as here, at least a portion of the service records cannot be located, through no fault of the veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit-of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Nevertheless, the claims file contains the veteran's post- service reports of private and VA medical treatment, as well as reports of VA examinations. Additionally, the claims file contains the veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims for service connection has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Service Connection - In General A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Secondary Service Connection Service connection may be granted, as well, for a disability that is proximately due to, the result of, or aggravated by, a service-connected condition. When service connection is established for a secondary condition, the secondary condition is considered as part of the original condition. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). But medical evidence is required to show this secondary cause-and-effect relationship; mere lay opinion will not suffice. See Lanthan v. Brown, 7 Vet. App. 359, 365 (1995). Analysis Based on the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for an ear popping disability, a sore throat disability, a sinus disability, and skin disabilities of the hands, lower lip, and scalp, as well as for onychomycosis of the right great toenail and a disability of the left great toe, so they must be denied. 38 C.F.R. § 3.102. Furthermore, while the Board acknowledges that the veteran's service medical and personnel records are unavailable, there is no evidence of continuity of symptomatology during the intervening years after his discharge from service and the initial mention the veteran's claimed disabilities. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). Similarly, the veteran's private medical records first show treatment for a sore throat in 1981, related to acute tonsillitis; his skin disability of the lower lip and onychomycosis of the bilateral great toenails were not diagnosed until 2000. Post-service treatment records are otherwise negative for complaints of an ear popping disability, a sinus disability, a skin disability of the hands, or a skin disability of the scalp. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service- connected disease or injury to cases where such incidents have resulted in a disability."). The Board notes that, in the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). More significantly, there is no competent clinical evidence that relates his current ear popping disability, a sore throat disability, a sinus disability, and skin disabilities of the hands, lower lip, and scalp, as well as for onychomycosis of the right great toenail and a disability of the left great toe to his service. In particular, the Board notes that the February 2005 VA examiners found that the veteran's various skin disabilities, including his hands, lower lip, and scalp, as well as his claimed ear popping, sore throat, and sinus disabilities, were unrelated to his military service, including any possible in-service exposure to tear gas. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The Board acknowledges that J. C. D., M.D. stated that the veteran's onychomycosis of the right and left great toenails and an old injury of the left great toenail were related to the veteran's military service. However, Dr. D did not provide a rationale for his opinion, nor did he otherwise refer to any credible supporting evidence that the veteran's onychomycosis of the bilateral great toenails or an injury of the left great toenail were related to his service. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). See also Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Court rejected a medical opinion as "immaterial" where there was no indication the physician had reviewed relevant service medical records or any other relevant documents that would have enabled him to form an opinion on service connection on an independent basis). Moreover, both the August 2001 and February 2005 VA examiners found that the veteran's onychomycosis of the bilateral great toenails was unrelated to the veteran's military service. In addition, the February 2005 VA examiner found that there was no evidence of an injury to the left great toenail and that the veteran's onychomycosis was not related to any in-service trauma, including the veteran's residuals of a fractured right great toe. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability . . ."). As service connection may not be based on a resort to speculation or even remote possibility, the Board affords significant probative weight to the opinions of the August 2001 and February 2005 VA feet examiners. See 38 C.F.R. § 3.102. See also Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (the Board is not required to accept unsubstantiated or ambiguous medical opinions as to the origin of the veteran's disorder). As already acknowledged, when, as here, a veteran's service medical and personnel records are unavailable through no fault of his, the VA's duty to assist, the duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). In this regard, the Board again points out that there are no available records confirming the veteran's assertions as to the events of his service, nor is there any medical evidence of record demonstrating that the veteran had tear gas exposure or any residuals thereof during his service, including an ear popping disability, a sore throat disability, a sinus disability, skin disabilities of the hands, lower lip, and scalp, onychomycosis of the right great toenail, or a disability of the left great toe. Therefore, the only evidence portending that the veteran has an ear popping disability, a sore throat disability, a sinus disability, skin disabilities of the hands, lower lip, and scalp, as well as onychomycosis of the right great toenail and a disability of the left great toe, related to his service, comes from him personally. As a layperson, the veteran simply does not have the necessary medical training and/or expertise to diagnose or determine the etiology of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). See, too, Savage v. Gober 10 Vet. App. at 495- 498, indicating that, even in situations of continuity of symptomatology after service, there still must be medical evidence relating the current conditions at issue to that symptomatology. Id. As such, his allegations, alone, have no probative value without medical evidence substantiating them. So the preponderance of the evidence is against his claims, in turn, meaning the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). (CONTINUED ON NEXT PAGE) ORDER Service connection for ear popping disability, including as secondary to tear gas exposure, is denied. Service connection for a sore throat disability, including as secondary to tear gas exposure, is denied. Service connection for a sinus disability, including as secondary to tear gas exposure, is denied. Service connection for a skin disability of the hands, including as secondary to tear gas exposure, is denied. Service connection for a skin disability of the lower lip, including as secondary to tear gas exposure, is denied. Service connection for a skin disability of the scalp, including as secondary to tear gas exposure, is denied. The claim for service connection for onychomycosis of the right great toenail, including as due to service-connected residuals of a fracture of the right great toe, is denied. The claim for service connection for a left great toe disability is also denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs