Citation Nr: 0812455 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-28 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased (compensable) rating for a history of lymph node enlargements, bilateral axillae. 2. Entitlement to service connection for lung cancer due to herbicide and asbestos exposure. 3. Entitlement to service connection for diabetes mellitus, including due to herbicide exposure. 4. Entitlement to service connection for lipomas on the chest and neck. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran served on active duty from December 1965 October 1969. This appeal to the Board of Veterans' Appeals (Board) is from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2007, to support his claims, the veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board - also commonly referred to as a "Travel Board" hearing; a copy of the hearing transcript is associated with the claims file. During the hearing he submitted additional evidence and waived his right to have the RO initially consider this evidence. See 38 C.F.R. §§ 20.800, 20.1304(c) (2007). Also during his September 2007 Travel Board hearing, the veteran withdrew his claim for a total disability rating based on individual unemployability (TDIU). 38 C.F.R. § 20.204 (2007). The United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), which reversed a decision of the Board that had denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagrees with the Court's decision in Haas and has appealed this case to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on Court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of VA imposed a temporary stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed will be resumed. The veteran's claim for service connection for lung cancer is subject to this stay and its adjudication therefore must be deferred. However, with respect to his claim for service connection for diabetes mellitus, as will be explained, inasmuch as there is no medical evidence confirming he has this condition, despite his indications during his September 2007 hearing that he had received this diagnosis, there is no basis upon which to stay further proceedings and the Board will go ahead and adjudicate this pending claim - although it, too, would otherwise be subject to the Haas stay. FINDINGS OF FACT 1. The veteran's service-connected excision scars for lymph node enlargements, bilateral axillae, are small, essentially asymptomatic, and not productive of limitation of function. 2. The competent medical evidence of record does not show the veteran has diabetes mellitus. 3. The competent medical evidence of record also does not show the veteran has lipomas on his chest and neck. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for excision scars for lymph node enlargements, bilateral axillae, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.118, Diagnostic Codes 7819 (2007). 2. The veteran does not have diabetes mellitus due to a disease or injury incurred in or aggravated by his military service or that may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. The veteran also does not have lipomas on his chest and neck from disease or injury incurred in or aggravated by his military service or that may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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, 3.326(a) (2007). 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. When a claim is for service connection, VA must also provide notice that a disability rating and an effective date will be assigned for an award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). To the extent possible, VCAA notice should be provided to a claimant before an initial unfavorable agency of original jurisdiction decision on a claim. However, if, for whatever reason, this did not occur, VA can "cure" this timing defect by providing any necessary notice and going back and readjudicating the claim such that the intended purpose of the notice is not frustrated and the veteran is given opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 07- 7130 (Fed. Cir. September 17, 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). With respect to his service-connection claims, in June 2004 and prior to the April 2005 rating decision on appeal, VA sent the veteran a timely VCAA notice letter that satisfied all the requirements noted above - except that it did not advise him that a downstream disability rating and an effective date for an award of benefits will be assigned if service connection is eventually granted. See Dingess, supra. However, he has since been provided this required Dingess notice in letters date in June 2007 and October 2007, and after providing this additional notice in June 2007, the RO went back and readjudicated his claim in the July 2007 supplemental statement of the case (SSOC). See again, Mayfield IV and Prickett, indicating this effectively "cured" the timing error in the provision of this additional, but necessary, notice. For an increased-compensation claim, such as this one involving the veteran's history of lymph node enlargements, bilateral axillae, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. at 43-44. By letter dated in June 2007, the veteran was advised of the evidence necessary to substantiate a claim for an increased rating and of his and VA's respective duties in obtaining evidence. He was also asked to send information describing additional evidence, or the evidence itself, which would include that in his possession. In this letter, he also was notified that VA uses a schedule for evaluating disabilities and that depending on the disability involved, assigns a rating from 0 to as much as 100 percent. He was told that in determining a disability rating, VA considers the severity and duration of the symptoms and the impact of the condition upon employment. He was also notified of examples of evidence that he should identify or provide that may affect how his disability is rated. Accordingly, adequate notice was provided and the claim was thereafter readjudicated in the July 2007 SSOC. See Mayfield IV and Prickett. The veteran was also provided the specific rating criteria for evaluating his service-connected history of lymph node enlargements, bilateral axillae, in the July 2005 SOC, and he demonstrated actual knowledge of these criteria based upon his September 2007 hearing testimony and the statements made on his behalf by his accredited representative. Accordingly, the duty to notify has been fulfilled. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). This duty has also been met, as the veteran's VA and private treatment records have been obtained and associated with the claims folder and he was afforded a VA general medical examination in connection with his claims in January 2005. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The record does not suggest the existence of additional, pertinent evidence that has not been obtained. Indeed, the veteran indicated in a June 2007 form responding to the VCAA notice that he had no additional information or evidence to submit. Accordingly, the Board finds that the current medical evidence of record is adequate for purposes of rendering a decision concerning his appeal. That is to say, no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. Increased Rating The veteran's service medical records show that he was treated for a swollen lymph gland of the right armpit in December 1968. In January 1969, he had developed left lymphadenopathy. A biopsy was performed on the right side in March 1969. A VA examination in May 1996 noted that the veteran stated that he had had lipomas for about fifteen years - one removed from the right forearm in 1968, from the right leg which recurs, and one removed from the left axilla in November 1995. The diagnosis was multiple lipomas both axillae, right arm, and right leg. Based on these findings, the RO issued a rating decision in October 1996 in which it granted service connection for lipoma bilateral arms under Diagnostic Code 7819 for new benign skin growths, which should be rated as scars on the basis of a disfigurement or as eczema, dependent upon location, extent, and repugnant or otherwise disabling character manifestations. The RO, however, assigned a noncompensable (zero percent) rating based on the fact that there was no evidence of exfoliation, exudation, or itching involving an exposed surface or extensive area. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Effective August 30, 2002, the rating criteria for diseases of the skin were revised. See 67 Fed. Reg. 49590 (Jul. 31, 2002). Since the veteran's claim for an increased evaluation was filed in May 2004, only these "new" criteria apply. Diagnostic Code 7819 provides that benign skin neoplasms are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or for impairment of function (Diagnostic Code 7805). 38 C.F.R. § 4.118. In turn, these diagnostic codes provide a compensable rating for a scar that is deep or that causes limited motion in an area or areas exceeding 6 square inches (39 square centimeters); for a superficial scar that does not cause limited motion but which covers an area of 144 square inches (929 sq. cm.) or greater; for an unstable, superficial scar; for a superficial scar that is painful on examination; or for a scar that causes limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805. Applying these criteria to the facts of this case, the Board finds no basis to assign a compensable disability rating for the veteran's history of lymph node enlargements, bilateral axillae. Although there are extensive VA outpatient treatment records, the only relevant evidence for consideration with respect to the veteran's claim for a higher rating for the history of lymph node enlargements, bilateral axillae, is a January 2005 VA examination report revealing no evidence of any lipomas on physical evaluation. The examiner considered the veteran's medical history, including the evidence in his claims file, yet was unable to discern any notable pathology. In addition, although different scars all over his body, to include the lipoma excision scars, were also noted, these scars are described as not tender or painful and not adherent to the underlying tissue. The veteran's skin also is reportedly supple, and there is no instability, ulcer formation, or breakdown of his skin. As well, there is no elevation or depression of the scars; instead, they are superficial and not deep, and there is no inflammation, edema, or keloid formation. The colors are hyperpigmented; the scars do not distort the anatomy; there is no induration or inflexibility of the scars subject to this appeal; there is no associated limitation of motion; and there is no obvious disfigurement. Although the scars are superficial and do not cause any associated limited motion, it is equally worth noting they do not involve an area of 144 square inches (929 sq. cm.) or greater - rather, to the contrary, they cover an area significantly less than this. There is no evidence of abnormalities of skin or soft tissue that extend over a large area, limitation of motion due to the scarring, pain on examination of the scars, or frequent loss of covering of skin over the scars so as to warrant a compensable rating. With respect to the lipoma, bilateral arms, the January 2005 VA examiner provided the following explanation: There is nothing in the history which states that [the veteran] had lipoma in 1969. What had happened in 1969, he had right trochlear lymph node enlargement and the cause is not known at the time. They did a biopsy on these notes and they found that these were small, discrete, noncaseating granulomas. Biopsy showed noncaseating granuloma of the lymph nodes. Tuberculin skin test was negative. There was no evidence to suggest anything beyond a chronic inflammatory reaction as a result of cuts in the past. The only reference we have to any lumps is the supratrochlear lymph nodes and the lymph nodes in his axillary area, which he developed later in 1995 and 1999, which were also apparently non granulomatous type lymph enlargement. There was no evidence to suggest there was any lipoma. This lipoma diagnosis appears to be a misnomer. There is no purpose of pursuing it any further if it is not on record. The diagnoses included no objective evidence to support the diagnosis of lipoma of the arms. The examiner commented that the only service-connected product of the veteran's arms was a noncaseating granuloma of the right elbow area. In sum, there is simply no basis to assign a compensable rating for his service-connected history of lymph node enlargements, bilateral axillae. Indeed, there is question to even wonder whether this condition should be service connected. In this regard, the Board acknowledges the veteran's complaints of pain and pressure in the area of his lymph nodes; however, the competent medical evidence does not include objective clinical findings to support these subjective complaints. In light of these findings, the Board concludes that the preponderance of the evidence is against the veteran's claim of entitlement to a compensable disability rating for his service-connected history of lymph node enlargements, bilateral axillae. And as the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Accordingly, the appeal is denied. Finally, the Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest the veteran is not adequately compensated by the regular rating schedule. VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Specifically, a VA examiner concluded in January 2005 that the veteran's skin condition did not interfere with his employment. Service Connection In general, service connection may be granted for a current disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. 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 diagnosis including the word "chronic." 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(b). Service connection may be presumed for certain diseases, including diabetes mellitus, if it is shown the veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and such disease became manifest to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113; 38 C.F.R. §§ 3.307, 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). The veteran's claim is based on the theory that he was exposed to herbicide agents while serving in Vietnam. Under 38 C.F.R. § 3.309(e), if a veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval or air service and has a disease that is listed in § 3.309(e), such disease shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease in service, provided that the rebuttable presumptions of § 3.307(d) are also satisfied. The diseases that may be presumptively associated with service connection when the rebuttable presumption provisions of § 3.307(d) include: chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; 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 sarcoma (other than osteasarcoma, chondrosarcoma, Kaposi's sarcoma or mesothelioma). 38 C.F.R. § 3.309(e). Applicable regulations 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 the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the "Vietnam Era"). 38 C.F.R. § 3.307(a)(6)(iii) "Service in the Republic of Vietnam" includes service in the waters offshore and 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). The veteran is not limited to demonstrating service connection is warranted on a presumptive basis. Service connection may also be established with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against), with the veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As mentioned, the veteran asserts that he has diabetes mellitus as a result of Agent Orange exposure in Vietnam (or on a ship off shore). The veteran's service medical records do not mention any complaints of relevant symptoms or show a diagnosis of diabetes. The veteran's post-service medical records, including his VA and private treatment records, also are unremarkable for any diagnosis or treatment of diabetes mellitus. Specifically, although his treatment records note a prior medical history of diabetes mellitus with peripheral neuropathy and that he was on a diabetic diet, these records are silent with respect to specific diagnosis of or treatment for diabetes mellitus. Moreover, upon VA examination in January 2005, the examiner noted that the veteran stated that he had been diagnosed as a diabetic and had been treated for peripheral neuritis. He was complaining of numbness in his feet, which he said had been ongoing for a couple of years. He stated that his doctors had related this symptom to his diabetes. However, the examiner noted there was nothing in the laboratory findings to suggest the veteran has diabetes. His abnormal liver function suggest that he has chronic hepatitis, which is confirmed. The examiner concluded that the veteran "definitely probably has abnormal glucose metabolism as a result of his liver pathology and not because of diabetes." The examiner stated that he did not believe the veteran has diabetes, but that he did believe the veteran has peripheral neuropathy which is most likely related to his hepatitis C. Simply put, there is insufficient evidence in the file to confirm the veteran has diabetes mellitus. He indicated during his September 2007 Travel Board hearing that he would be submitting this documentary evidence to prove he does have diabetes mellitus. So the Board held the record open an additional 30 days to allow him this opportunity, including in particular so he could obtain this evidence from University Hospital. However, to date, he still has not met this threshold and perhaps most fundamental evidentiary burden of establishing he has this claimed condition. Similarly, with respect to the claim for service connection for lipomas on the chest and neck area, the veteran's service medical records are silent with respect to relevant complaints or findings concerning that claimed condition also. The post-service medical records reflect that the veteran has undergone multiple biopsies, to include in the chest and neck area. However, upon VA examination in January 2005, the examiner reviewed the veteran's claims file, to include the veteran's history of multiple biopsies, and concluded that "there is nothing to suggest there were any lipomas at all of his neck or chest." The diagnoses indicated "no evidence to support a diagnosis of lipoma of the chest and neck area." The examiner concluded there are no lipomas supported by the diagnosis on examination or by history. Congress has specifically limited entitlement to service connection for instances in which disease or injury have resulted in an actual disability. See 38 U.S.C.A. §§ 1110, 1131. In the absence of proof of a present disability (and, if so, of a nexus, i.e., link, between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, as there is no evidence that the veteran currently has diabetes or lipomas on his chest and neck area, his claims for these conditions must be denied. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that compensation may only be awarded to an applicant who has a disability existing on the date of the application, and not for a past disability). The veteran's assertions, to include his written communications and hearing testimony, have been taken into account in adjudicating these claims; however, as a layman, he does not have the necessary medical training and/or expertise to give a probative opinion on the diagnosis of his diabetes mellitus or lipomas on the chest and neck area. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). He is competent to attest to symptoms he has personally experienced; however, he is not competent to provide a diagnosis or findings with respect to such symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent evidence supports the claims, this doctrine is inapplicable. 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 A compensable rating for history of lymph node enlargements, bilateral axillae, is denied. Service connection for diabetes mellitus is denied. Service connection for lipomas on the chest and neck area is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs