Citation Nr: 1035229 Decision Date: 09/17/10 Archive Date: 09/21/10 DOCKET NO. 05-22 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for acquired psychiatric disorder (claimed as depression). 2. Entitlement to service connection for a circulatory disorder resulting in numbness of the feet due to herbicide exposure. 3. Entitlement to service connection for dementia due to herbicide exposure. 4. Entitlement to service connection for skin sensitivity of the face due to herbicide exposure. 5. Entitlement to an initial rating greater than 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active service from May 1968 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In January 2009, the Board remanded issues # 1 - 4 for additional development. The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and that claim is referred to the AOJ for appropriate action. The issues of entitlement to service connection for an acquired psychiatric disorder and dementia, as well as entitlement to an initial rating greater than 10 percent for PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's facial sensitivity did not manifest in service, and is not shown to be causally related to active service. 2. The Veteran is not shown to manifest a circulatory disorder resulting in foot numbness. CONCLUSIONS OF LAW 1. Service connection for a skin disorder manifested by facial skin sensitivity is not warranted. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. Service connection for a circulatory disorder resulting in numbness of the feet due to herbicide exposure is not warranted. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In McClain v. Nicholson, 21 Vet. App. 319 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement that a claimant have a current disability before being granted service connection is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability may have resolved by the time VA adjudicates the claim. "[P]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds, 259 F.3d 1356 (Fed. Cir. 2001). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. § 1112, 1113; 38 C.F.R. § 3.309(a). Facial skin sensitivity and a non-specified foot numbness disorder are not among those chronic diseases identified in 38 C.F.R. § 3.309(a). In addition, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the specific time period will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Specifically, this includes 2,4- D; 2,4,5-7 and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). Facial skin sensitivity and a non-specified foot numbness disorder are not among the diseases subject to presumptive service connection under 38 U.S.C.A. § 1116. It is not alleged, or shown, that the Veteran has ever manifested acute and subacute peripheral neuropathy. See 38 C.F.R. § 3.309(e), Note 2 (defining acute and subacute peripheral neuropathy as a transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27,630-27,641 (May 20,2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov.2 1999). A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer). As reflected in Fed.R.Evid 701, a lay witness testimony in the form of opinions or inferences constitutes competent evidence when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. At the outset, the Board must clarify the issues argued by the Veteran. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court redefined the concept of what issues are encompassed in a service connection "claim" filed by a claimant. The Clemons Court held that the scope of a claim must be understood from the viewpoint of a lay claimant who may not be required to understand sophisticated legal or medical distinctions, and that "the claimant's intent in filing a claim is paramount to construing its breadth." The Court also cited the holding in Ingram v. Nicholson, 21 Vet. App. 232, 254 (2007), which held that VA must apply a "sympathetic reading" to a lay person's pleadings with attention focused upon the symptoms the claimant is attempting to service connect. The Veteran seeks service connection for "dermatitis." In his Notice of Disagreement (NOD) received in August 2004, the Veteran described this issue on appeal as "[d]ermatitis - rash on my feet (constant dampness of my feet)." Notably, the Veteran's VA clinical records do not reflect an actual diagnosis of dermatitis but rather tinea pedis. An October 2003 VA clinical record inartfully provided the following assessment: "Dermatitis: Tinea pedis. Order for ketoconazole cream as previous," clearly reflecting diagnosis and treatment for tinea pedis alone. In a rating decision dated April 2010, the RO granted service connection for tinea pedis. As service connection for "[d]ermatitis - rash on my feet (constant dampness of my feet)" has been granted, there is no current controversy before the Board concerning these symptoms of disability. 38 U.S.C.A. §§ 7104, 7105. However, in his Substantive Appeal received in June 2005, the Veteran also argued that he manifested a skin condition contracted in Vietnam which involved easy bleeding when shaving. The Veteran's VA clinical records do not reflect any diagnosed skin disorder other than tinea pedis. However, a December 2007 VA clinical record noted an assessment of "skin sensitivity" of the face, and recommended the Veteran to use an electric shaver rather than a razor. For purposes of this decision, the Board will presume the existence of a skin disorder of the facial area. The Veteran has also argued that his feet numbness is due to loss of circulation. However, in a May 2004 statement, the Veteran argued that his tinea pedis disorder caused him to suffer numbness of the feet. To the extent that the Veteran argues numbness as a symptom of tinea pedis, the Board notes that the initial evaluation for this disorder is not before the Board at this time. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). For purposes of this decision, the Board will address whether the Veteran manifests a circulatory disorder resulting in foot numbness as claimed by the Veteran. The Veteran's service treatment records (STRs) only reflect his treatment for tinea cruris. As noted by the Board in January 2009, tinea cruris and tinea pedis are part of the single disease entity of dermatophytosis, but are separately named based upon the body part affected. See 38 C.F.R. § 4.118, Diagnostic Code 7813. On his separation examination dated January 1971, the Veteran described his overall physical condition as "good," and did not report facial skin insensitivity or foot numbness. Physical examination indicated normal clinical evaluations of the skin, lower extremities, vascular system and neurologic system. Postservice, the record first reflects the Veteran's report of facial skin symptoms in June 2005, which is more than 34 years after his discharge from service. There is no medical documentation of any facial skin disorders until December 2007 at which time a VA clinical record noted an assessment of "skin sensitivity." Other than the Veteran's allegations of continuity of symptomatology, there is no other evidence in the record to indicate a connection between the problems subsequent to 2005 and service that ended several decades earlier. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the Veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). The postservice medical record does not reflect any diagnosis pertaining to a circulatory disorder of the feet. Rather, an April 2002 VA clinical record found that the Veteran had no sensory deficits of the lower extremities. As part of the current VA disability compensation claim, in recent statements, the Veteran has asserted that his symptoms of facial skin sensitivity and foot numbness have been continuous since service. After a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience these symptoms in service and continuously thereafter. The Veteran's assertions of continued symptomatology since active service, while competent, are not credible. The Board first finds that the Veteran's more recently-reported history of continued symptoms of facial skin sensitivity and foot numbness since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorders began in service, competent evidence in the form of a physician examination at the time of his separation from service indicated that chronic disorders involving facial skin and foot "numbness" were not present. Additionally, the Veteran's current complaints are not consistent. The Veteran initially argued that his tinea pedis claim involved his feet only, but later expanded the claim to include facial sensitivity while shaving. Similarly, the Veteran is unclear as to the basis for his foot numbness claim. The Veteran himself argues that he manifests memory problems with "dementia," reflecting his own concession that his ability to recall events may be of questionable reliability. The Board next notes that the post-service medical evidence does not reflect complaints or treatment related to facial skin sensitivity until 2005, which is more than 34 years following active service. The Board emphasizes the multi-year gap between discharge from active duty service and the initial reported symptoms related provide some evidence against the claims. See Maxson, 230 F.3d at 1333; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board next notes that the Veteran has sought treatment for a myriad of medical complaints since discharge from service. Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to the facial skin sensitivity until 2007 and no reports of foot numbness at all. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran filed a VA disability compensation claim in May 1971, but did not claim service connection for facial skin sensitivity or foot numbness. Furthermore, the Veteran did not claim that symptoms of these disorders began in (or soon after) service until he filed his current VA disability compensation claims. Overall, these factors weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). In sum, the preponderance of the evidence establishes that the Veteran's facial sensitivity did not manifest in service, and is not shown to be causally related to active service. Furthermore, the Veteran is not shown to manifest a circulatory disorder resulting in foot numbness. The Board has considered the Veteran's allegations of the onset and/or worsening of facial skin sensitivity and foot numbness during service, but his allegations are inconsistent, unreliable and not credible when viewed against the entire evidentiary record. The benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant.") As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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) (2009). With respect to the toe numbness claim, a preadjudicatory April 2004 RO letter substantially complied with the VCAA notice requirements, as it informed that Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the skin disability claim, a preadjudicatory July 2005 RO letter substantially complied with the VCAA notice requirements, as it informed that Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio, 16 Vet. App. 183 (2002); Mayfield, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini, 18 Vet. App. 112 (2004). As the claims remain denied so that initial disability ratings and effective dates of award will not be assigned; there is no prejudice in failing to timely advise the Veteran of the criteria for establishing an initial disability rating and effective date of award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (a notice error is not prejudicial when concerning a benefit that cannot be awarded matter of law). VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of STRs and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained all relevant STRs, VA clinical records, private clinical records and documents pertaining to an application for disability benefits with the Social Security Administration. In the case of a claim for disability compensation, the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d). An examination or opinion shall be deemed necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) there is an indication that the disability or symptoms may be associated with the veteran's service or with another service- connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that further development is not needed in this case because there is sufficient evidence to decide the claims. With respect to a dermatitis claim, the Veteran was afforded VA examination to determine the nature and etiology of his claimed "dermatitis" claim. A December 2009 VA C&P examiner diagnosed tinea pedis first manifested in service. The Veteran has also vaguely reported foot numbness and facial skin sensitivity symptoms. These allegations are very unclear. The credible lay and medical evidence does not demonstrate persistent or recurrent symptoms of disability since service and/or any credible evidence suggesting that these symptoms may be related to an event during service. As service and post- service records provide no credible basis to grant these claims, and provide highly probative evidence against the claims, the Board finds no basis for a VA opinion to be obtained. Overall, the Board finds that the evidence of record is sufficient to decide the claims, and that there is no reasonable possibility that any further assistance would aid in substantiating these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER The claim of entitlement to service connection for a circulatory disorder resulting in numbness of the feet due to herbicide exposure is denied. The claim of entitlement to service connection for skin sensitivity of the face due to herbicide exposure is denied. REMAND In a decision dated in January 2009, the Board granted service connection for PTSD. In a statement received in May 2010, the Veteran alleged that he manifested an acquired psychiatric disorder and/or dementia as secondary to PTSD. This new theory of causation must be considered by VA in deciding this claim. See Bingham v. Principi, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (a service connection claim involves all possible theories of entitlement). The Veteran has not been provided notice of the criteria for adjudicating a secondary service connection claim, and the RO has not considered this theory of entitlement. It would be fundamentally unfair to the Veteran to decide these issues which have not been developed and adjudicated by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). On remand, the Board is of the opinion that the Veteran should be afforded VA examination to determine the nature and etiology of all psychiatric diagnoses of record. 38 U.S.C.A. § 5103A(d). In January 2009, the RO issued a rating decision which assigned an initial 10 percent disability rating for PTSD. In a statement received in June 2009, the Veteran submitted a timely filed Notice of Disagreement (NOD) with the initial rating assigned, which initiates the appeal process. See 38 C.F.R. § 20.201. A Statement of the Case (SOC) has not been issued regarding this claim. The Board is required to remand, rather than refer, this issue. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding his secondary service connection claim theory under 38 C.F.R. § 3.310. The RO must provide the Veteran notice of the criteria of 38 C.F.R. § 3.310 in effect before and after October 10, 2006. See 71 Fed. Reg. 52,744 (September 7, 2006) (VA amended its regulation pertaining to secondary service connection, effective from October 10, 2006). 2. Obtain the Veteran's records of treatment for his psychiatric disorders within the Texas VA Healthcare System since March 2010. 3. After completion of the above, schedule the Veteran for appropriate VA examination to determine the nature and etiology of his claimed psychiatric disorders and dementia. The claims file should be made available for review, and the examination report should reflect that such review occurred. Upon physical examination of the Veteran and a review of the record, the examiner is requested to address the following questions: a) identify all current psychiatric diagnoses; b) for each current diagnosis identified, provide opinion as to whether it is at least as likely as not (50% probability or greater) that such disorder has been caused and/or aggravated (i.e., permanently increased in severity) by the service-connected PTSD; and c) if aggravation is found, the examiner should indicate the extent of aggravation if possible, and if this is not possible, the examiner should state as such. 4. Send the Veteran an SOC on the issue of entitlement to an initial rating greater than 10 percent for PTSD. Advise the Veteran that a timely substantive appeal will be necessary to perfect the appeal to the Board. 5. Thereafter, readjudicate the claims which include consideration of the Veteran's secondary service connection theory. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs