Citation Nr: 0813742 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-15 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for skin disorders, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The veteran served on active duty from July 1965 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claim for service connection for skin disorders (claimed as cysts of the back and shoulders), to include as secondary to Agent Orange exposure. In May 2005, the Board remanded the case to the RO for issuance of a statement of the case. In a May 2006 statement, the veteran appears to have raised a new claim of entitlement to service connection for birth defects in two of his daughters, secondary to his exposure to herbicides in service. The Board refers that matter to the RO for appropriate action. FINDING OF FACT The veteran does not have any currently diagnosed skin disorders. CONCLUSION OF LAW Claimed skin disorders (cysts of the back and shoulders) were not incurred in or aggravated by active service and are not proximately due to or the result of exposure to herbicide agents. 38 U.S.C.A. § 1110, 1112, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2007); 38 C.F.R. § 3.303 (2007). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A.§§ 1101, 1112, 1113, 1137 (West 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). The veteran's claimed skin disorders (cysts of the skin and back), however, are not conditions for which service connection may be granted on a presumptive basis. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) (2007), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. The veteran's claimed skin disorders, however, are not among these diseases or disorders. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.307(d), 3.309(e) (2007). Nevertheless, an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). A disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. 38 C.F.R. § 3.310 (2007). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service- connected disability caused by a service-connected disability. 38 C.F.R. § 3.310 (2007); Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 309 (1993). Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service- connected disability. 38 C.F.R. § 3.303, 3.310 (2007). Here, the veteran asserts that he has cysts on his back and shoulders which developed as a result of exposure to Agent Orange while he was serving in Vietnam. Any veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2007). In this case, the veteran's personnel records reveal that he served two tours of duty in Vietnam from January 1966 to August 1966 and from October 1966 to February 1967, and that his decorations included the Vietnam Campaign Medal with device, the Vietnam Service Medal, and the Vietnam Cross of Gallantry with Palm. Thus, the veteran will be afforded the presumption of exposure to Agent Orange. However, the disorders for which the veteran has claimed service connection (cysts of the back and shoulders) have not been shown to have a positive association with exposure to herbicides. Therefore presumptive service connection as secondary to exposure to Agent Orange is not warranted. 38 C.F.R. § 3.309(e). Having ruled out presumptive service connection in the present case, the Board will now address the issue of direct service connection. The first requirement for any service connection claim is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, the veteran claims that he contracted cysts on his shoulders and back as a result of his Agent Orange exposure in Vietnam.. However, neither his service nor post-service records indicate that he has ever been diagnosed with that skin disorder. The veteran's service medical records dated from July 1965 to December 1970 1965 reveal that in May 1967 and June 1967, he was administered topical medication for venereal warts on his groin, which were noted to have existed for roughly eight months. The veteran had the warts removed by shaving in July 1967. He then underwent a circumcision in October 1967, after which he was hospitalized for four days and then placed on several days of light duty. The veteran's post-operative recovery from this procedure was noted to be uneventful. The veteran now maintains that he developed cysts on his back and shoulders in service prior to contracting venereal warts and that the conditions were "totally unrelated." That assertion, however, is not supported by the clinical evidence of record. The veteran's service medical records contain no mention of any skin problems other than venereal warts. Additionally, the veteran's service medical records following his October 1967 circumcision do not refer to any skin condition. On examination prior to the veteran's separation from service in December 1970, no skin problems were reported, and clinical evaluation was negative for skin abnormalities. With respect to post-service medical records, the veteran underwent a physical examination in December 1970 prior to his entry into the Los Angeles Police Department in which he reported a history of venereal warts, but did not complain of any other skin problem. Clinical evaluation at that time indicated that the veteran did not have any current skin problems. Additionally, on VA examination in April 2004, the veteran reported that since having the venereal warts removed in 1967, he had not experienced any recurrences or residual symptoms. The veteran's post-service medical records are otherwise negative for any complaints, diagnoses, or treatment of skin disorders. Nevertheless, the veteran claims that between 1986 and 1990, he was treated for cysts on his back and shoulders at the VA Medical Center in Long Beach, California. His VA treatment records for this location, however, have been determined to be unavailable. In July 2004, the RO requested the veteran's complete medical records from the VA Medical Center in Long Beach. A January 2006 response from that VA Medical Center indicated that the veteran had never been treated there and that there was no medical information for him on record. When a veteran's records have been determined to have been destroyed, or are missing, VA has an obligation to search for alternative records that might support the veteran's case. Cuevas v. Principi, 3 Vet. App. 542 (1992). Here, VA met that obligation by making multiple attempts to secure the veteran's VA medical records from the VA Medical Center in Long Beach from a variety of sources, including from the veteran himself. In response to these requests for information, the veteran indicated that he did not have any VA medical records in his possession, and was duly informed of the unavailability of additional records. Additionally, in a April 2006 statement, the veteran informed VA that he did not have any other information or evidence to give VA to substantiate his claim. Thus, while the veteran maintains that he was diagnosed with cysts on his shoulders and back, he has not cooperated in obtaining records of any such diagnosis or treatment for submission to VA. Nor has he provided VA with any information that would enable VA to request the information on his behalf. The Board reminds the veteran that the duty to assist in the development and the adjudication of claims is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board has considered the veteran's contentions that he currently has cysts on his back and shoulders that are related to his active service. However, as a layman, the veteran is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124, 127 (1998). Absent evidence of a current disability, the Board finds that the preponderance of the evidence is against the claim, and service connection for cysts of the shoulders and back must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in March 2004 and March 2006; and a rating decision in June 2004. Those documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the June 2006 statement of the case. 38 C.F.R. § 19.31 (2007). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for skin disorders (claimed as cysts of the back and shoulders), to include as secondary to herbicide exposure, is denied. ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs