Citation Nr: 0814568 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-05 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for allergic rhinitis. 3. Entitlement to service connection for Raynaud's syndrome. 4. Entitlement to service connection for a bladder disorder. 5. Entitlement to service connection for a urinary tract disorder. 6. Entitlement to service connection for impotency. 7. Entitlement to service connection for residuals of a cold injury. 8. Entitlement to service connection for depression. 9. Entitlement to service connection for post-traumatic stress disorder. 10. Entitlement to service connection for an acquired mental disorder other than depression and post-traumatic stress disorder, claimed as rage, angry outbursts, twitching, and anxiety. 11. Entitlement to service connection for a skin disorder of the feet, to include as due to herbicide exposure. 12. Entitlement to service connection for a skin disorder of the arms and legs, to include as due to herbicide exposure. 13. Entitlement to service connection for rosacea, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD J. M. Macierowski, Associate Counsel INTRODUCTION The veteran served on active duty from April 1968 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the veteran requested, in correspondence from his representative dated in February 2008, a withdrawal of the issues of entitlement to service connection for hypertension, allergic rhinitis, Raynaud's syndrome, a bladder disorder, a urinary tract disorder, impotency, residuals of a cold injury, depression, post-traumatic stress disorder (PTSD), and an acquired mental disorder other than depression and PTSD. 2. A skin disorder of the feet, arms, and legs is not shown by the medical evidence of record to be related to the veteran's military service, to include as due to herbicide exposure. 3. Rosacea is not shown by the medical evidence of record to be related to the veteran's military service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the veteran, for the issues of entitlement to service connection for hypertension, allergic rhinitis, Raynaud's syndrome, a bladder disorder, a urinary tract disorder, impotency, residuals of a cold injury, depression, PTSD, and an acquired mental disorder other than depression and PTSD, are met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. A skin disorder of the feet, arms, and legs, was not incurred in, or aggravated by, active military service, and may not be presumed to have been so incurred, to include as a result of exposure to herbicides during service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. Rosacea was not incurred in, or aggravated by, active military service, and may not be presumed to have been so incurred, to include as a result of exposure to herbicides during service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Issues on Appeal By a rating decision dated in June 2005, service connection was denied for a bladder disorder, a urinary tract disorder, impotency, residuals of a cold injury, depression, and an acquired mental disorder other than depression and PTSD. The veteran perfected an appeal as to these issues in February 2006, with the exception of the bladder disorder issue, for which an appeal was perfected in August 2006. By a September 2005 rating decision, service connection was denied for hypertension, allergic rhinitis, Raynaud's syndrome, and PTSD. The veteran perfected an appeal as to these issues in August 2006. Through correspondence dated in February 2008, the veteran, through his representative, stated that he wished to withdraw all of these claims. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the claimant or by his or her authorized representative. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b) (1). The veteran, through his authorized representative, requested in February 2008 correspondence to VA that the issues of entitlement to service connection for hypertension, allergic rhinitis, Raynaud's syndrome, a bladder disorder, a urinary tract disorder, impotency, residuals of a cold injury, depression, PTSD, and an acquired mental disorder other than depression and PTSD, be withdrawn. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues, and as the Board consequently does not have jurisdiction to review the appeal with respect to those issues, they are dismissed. Service Connection Claims With respect to the veteran's claims for service connection, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claim, letters dated in March 2005 (skin disorder of the bilateral feet, skin disorder of the bilateral arms and legs) and July 2005 (rosacea) satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication); Overton v. Nicholson, 20 Vet. App. 427 (2006). The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The veteran was also accorded a VA examination in November 2005. 38 C.F.R. § 3.159(c) (4). There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the veteran's claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of 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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The governing law provides that a "veteran who, during active military, naval, or air 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 during such service 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 U.S.C.A. § 1116(f). "[S]ervice 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). Additionally, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, type II; Hodgkin's disease; 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. §§ 3.307, 3.309. Skin Disorder, Feet Review of the veteran's service personnel records shows that he had service in Vietnam. His service medical records show treatment for tinea pedis ("Athlete's foot") in November 1971 and for a rash on his feet and legs in December 1971. However, his service separation examination showed not evidence of a chronic skin disorder of the feet. Subsequent to service, a November 1991 private medical record and a March 2000 VA outpatient treatment record showed he was treated for tinea pedis. However, on VA examination in November 2005, the veteran's physical examination showed totally clear feet and legs, with no evidence of a fungal skin condition, to include tinea pedis. As noted above, the evidence of record does not show that the veteran has had a skin disorder of the feet since March 2000; there was no evidence of any skin disorder of the feet on VA examination in November 2005. As such, the Board concludes that the evidence does not show a chronic skin disorder of the feet. The veteran was treated twice in service, but no evidence of a chronic skin disorder of the feet existed on service separation. Thus, the tinea pedis shown in service was acute and transitory, not chronic. Moreover, the first objective medical evidence of record of a skin disorder of the feet is dated in November 1991, 20 years after the veteran's period of service had ended. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of the claimed condition); see also cf. Maxson v. Gober , 230 F.3d 1330, 1333 (Fed. Cir. 2000). The veteran was not treated for the condition again for another nine years, until 2000, which was the last documented incidence. See 38 C.F.R. § 3.303 (b). Thus, lacking a current diagnosis of a chronic disorder, service connection for a skin disorder of the feet is not warranted. Finally, despite the statements from the veteran as to the chronicity and etiology of his claimed skin disorder of the feet, it is well established that a layperson without medical training, such as the veteran, is not qualified to render medical opinions regarding the etiology of disorders and disabilities. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159(a) (1). Because the evidence of record does not show a chronic skin disorder of the feet, the preponderance of the evidence is against the veteran's claim for service connection. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Skin Disorder, Arms and Legs, Claimed as Ringworm Review of the veteran's service personnel records shows that he had service in Vietnam. His service medical records reveal that in September 1971, the veteran was treated for a rash that looked like ringworm (tinea corporis). A October 1971 record suspected a superficial fungal infection, noting what appeared to be ringworm on the veteran's left calf. A December 1971 record recorded that the veteran had a rash on his feet and legs. However, no evidence of a chronic skin disorder was noted on the veteran's service separation examination. Subsequent to service, an April 1986 private medical record showed psoriasis. An April 2004 VA treatment record showed that the veteran had a rash on his right elbow and left leg. During the veteran's April 2005 Agent Orange registry examination, he reported round lesions with central clearing on his arms and legs; however, a VA medical professional later determined that it was not a fungal infection such as tinea corporis. An October 2005 VA outpatient treatment record diagnosed seasonal tinea corporis. On VA examination in November 2005, the VA examiner determined that there were 7 areas of eczema on the veteran's right arm, with no evidence of fungal infection. In diagnosing the veteran with eczema, the examiner noted that she saw in the claims file that the veteran was treated for tinea corporis in 2005; while noting that the veteran had no evidence of a fungal skin condition on current examination, she also indicated that a large number of physicians who are not dermatology specialists often misdiagnose eczema, as may be the case with the veteran, as tinea corporis. In this case, service connection cannot be granted on a presumptive basis, as due to herbicide exposure, because neither eczema nor tinea corporis are among the diseases listed under 38 C.F.R. § 3.309(e). Accordingly, the veteran's claim for service connection, as on a presumptive basis, must be denied as a matter of law. Even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). The Court has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). However, service connection is also not warranted on a direct basis. The only opinion of record concerning the veteran's skin disorders of the arms and legs, made by the November 2005 VA examiner, concludes that the veteran's current skin disorder of the arms and legs is not related to the inservice skin disorder diagnosis. Moreover, although the veteran's claim that his current skin disorder of the arms and legs is related to herbicide exposure, it is well established that a layperson without medical training, such as the veteran, is not qualified to render medical opinions regarding the etiology of disorders and disabilities. See Espiritu, 2 Vet. App. at 494-95; see also 38 C.F.R. § 3.159(a) (1). Additionally, although the veteran indicated in his August 2006 substantive appeal that since this condition was noted on his May 2005 Agent Orange registry report, it must be related to herbicide exposure, that report specifically indicates that these "medical conditions may not necessarily be related to Agent Orange exposure." Because eczema and tinea corporis are not among those diseases presumptively linked to herbicide exposure, and the evidence of record does not relate either condition to his military service, the preponderance of the evidence is against the veteran's claim. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rosacea Review of the veteran's service personnel records shows that he had service in Vietnam. His service medical records do not show any evidence of rosacea or any other facial skin disorder. Subsequent to service, a January 1994 private medical record noted that the veteran reported an acne breakout; a December 1999 private medical record noted the first diagnosis of rosacea. Private medical records from that time through 2003 showed treatment for rosacea with topical ointments and oral prescription medications; this reported treatment and diagnosis was echoed by the November 2005 VA examiner. Despite the veteran's current diagnosis of rosacea, the evidence of record does not relate this disorder to the veteran's military service. Service connection cannot be granted on a presumptive basis, as due to herbicide exposure, because rosacea is not one of the diseases listed under 38 C.F.R. § 3.309(e). Accordingly, the veteran's claim for service connection, as on a presumptive basis, must be denied as a matter of law. Service connection is also not warranted on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There are no opinions of record which relate the veteran's rosacea to his military service. Moreover, although the veteran's claim that his rosacea is related to herbicide exposure, he is not qualified to render medical opinions regarding the etiology of disorders and disabilities. See Espiritu, 2 Vet. App. at 494-95; see also 38 C.F.R. § 3.159(a) (1). Additionally, although the veteran indicated in his August 2006 substantive appeal that since rosacea was noted on his May 2005 Agent Orange registry report, it must be related to herbicide exposure, that report specifically indicates that these "medical conditions may not necessarily be related to Agent Orange exposure." Because rosacea is not among those diseases presumptively linked to herbicide exposure, and the evidence of record does not relate the veteran's rosacea to his military service, the preponderance of the evidence is against the veteran's claim. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The issues of entitlement to service connection for hypertension, allergic rhinitis, Raynaud's syndrome, a bladder disorder, a urinary tract disorder, impotency, residuals of a cold injury, depression, PTSD, and an acquired mental disorder other than depression and PTSD, are dismissed. Service connection for a skin disorder of the feet is denied. Service connection for a skin disorder of the arms and legs is denied. Service connection for rosacea is denied. ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs