Citation Nr: 1230563 Decision Date: 09/06/12 Archive Date: 09/10/12 DOCKET NO. 06-16 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a skin disorder, to include a rash on the legs. 2. Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active duty from April 1961 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2008, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. This matter was previously before the Board in May 2008, March 2009, and July 2011. In May 2008, the Board reopened and remanded the appellant's claims. For the reasons discussed below, the Board finds that there has been substantial compliance with the Board's remand orders. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a skin disorder, to include a rash on the legs, that is related to service. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has diabetes mellitus, type II, that is related to service. CONCLUSIONS OF LAW 1. A skin disorder, to include a rash on the legs, was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. Diabetes mellitus, type II, was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant'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, each piece of evidence of record. 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 appellant 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 appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011). The United States Court of Appeals for Veterans Claims (Court) held that VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a VCAA notice letter was issued in October 2004. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. A letter addressing the assignment of a disability rating and/or effective date, in the event of award of the benefit sought was issued in November 2006. Dingess/Hartman, 19 Vet. App. at 490. Although the November 2006 letter was not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to him, since the claim was readjudicated thereafter, and additional supplemental statements of the case (SSOC) were provided to the appellant in May 2007, January 2009, August 2009, and June 2012. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also notes that it appears the appellant did not receive notice specifically regarding his claims to reopen. However, as the Board reopened the appellant's claims in the May 2008 rating decision, any error was harmless and will not be further discussed. Duty to Assist The Board concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. For the reasons discussed below, the Board finds that the VA Appeals Management Center (AMC) fulfilled the requirements of the Board remand by attempting to obtain evidence of exposure to chemicals and/or herbicides in service. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was not afforded VA examinations to determine the etiology of his skin disability or diabetes mellitus, type II. However, the Board finds that VA examinations are not necessary. As discussed below, the Board finds that the appellant has a current skin disability and diabetes mellitus, type II. However, there is no indication that the disabilities may be associated with an established in-service event, injury, or disease. For the reasons discussed below, the Board finds that the appellant's assertion of continuity of skin symptoms is less than credible. The Board also finds that the appellant was not exposed to herbicides. The appellant's service treatment records do not indicate that he had a skin rash or diabetes mellitus, type II in service. Additionally, as discussed below, there are no competent opinions indicating that there is a nexus between the conditions and service. Consequently, the Board finds that a VA examination is not necessary for either claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic disabilities, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, 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, such as Agent Orange, 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) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2011). Those diseases include chloracne or other acneform diseases 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 sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchi, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), ischemic heart disease, Parkinson's disease, and B cell leukemias. 38 C.F.R. § 3.309(e) (2011). IV. Exposure to Chemicals and/or Herbicides in Service The record does not show, and the appellant acknowledges, that he did not serve in Vietnam. The appellant contends that he was sprayed with chemicals and/or herbicides while he was stationed at Fort Greely, Alaska, in 1962. (March 2008 Board Hearing Transcript (Tr.) at 4) At the Board hearing, the appellant testified that he participated in tests in which he and others, while outfitted in gas masks, were sprayed with chemicals, after which they marched into the elements. (Tr. at 4-6) Upon return, they were required to turn over the clothing they had worn. (Tr. at 7) The appellant testified that after the last two tests, he was restricted from taking a shower for 10 days and broke out in a rash on his legs. (Id.) He claimed that he was sprayed with chemicals and/or herbicides in October and November of 1962. The appellant submitted several internet articles pertaining to chemicals and Fort Greely in Alaska. The articles contained general information concerning testing in the 1960s. A June 2003 internet article stated that Army correspondence that surfaced in late 2002 confirmed that in the 1960s Agent Orange was sprayed on the Alaska oil pipeline's right of way to clear vegetation. As these articles are general in nature, they do not indicate that the appellant was specifically exposed to chemicals or herbicides while in service. The appellant's personnel records indicate that he was stationed at Fort Wainwright Alaska from August 1962 to November 1962. He was stationed at the U.S. Army Arctic Test Board from November 1962 to December 1962. He was dropped from the rolls following desertion from January 1, 1963, to January 21, 1963. He was stationed at Fort Wainwright Alaska again from May 1963 to June 1963. The appellant's service personnel records do not indicate that he was exposed to chemicals or herbicides in service. A December 2008 response from the National Personnel Records Center (NPRC) reflects that there were no records of exposure to herbicides. An October 2011 email from the RO notes that internet research indicated that the Alaska pipeline was built between 1974 and 1977. The RO also noted that internet research indicated Operation Elk Hunt, Phase I testing did not occur until July 3 to August 15, 1964. Phase II testing occurred in 1965 at Fort Greely, Alaska. A U.S. Army and Joint Services Records Research Center (JSRRC) response from December 2011 reflects that U.S. Army historical records available to them did not document the spraying, testing, transporting, storage, or usage of chemicals and/or herbicides at Fort Greely, Alaska, during the period of October 1962 through December 1962. The JSRRC stated that they had also reviewed the Department of Defense listing of herbicide spray areas and test sites outside the Republic of Vietnam, and Fort Greely, Alaska, was not listed as a location. Therefore, they were unable to document that the appellant was exposed to Agent Orange or other herbicides while stationed at Fort Greely, Alaska. The JSRRC stated that for information concerning possible exposure to chemicals, the AMC should contact The U.S. Army Medical Research Institute of Chemical Defense and the Surgeon General. In a December 2011 response to a request for information from the AMC, the Surgeon General's Office stated that they did not maintain medical documentation. A January 2012 response from the U.S. Army Medical Research Institute of Chemical Defense reflects that the institute had no information concerning the appellant or of exposures at Fort Greely, Alaska. In a January 2012 memorandum, the AMC made a Formal Finding of lack of information required to corroborate the appellant's allegation. As noted above, the Board finds that the AMC's actions satisfied VA's duty to assist. See Dyment, 13 Vet. App. at 146-147; Stegall, 11 Vet. App. at 271. As a result of the above, the Board finds that the preponderance of the evidence indicates the appellant was not exposed to herbicides or chemicals while service in Alaska. The Board notes that the appellant has provided no indication that he is competent to identify or distinguish the herbicides listed in 38 C.F.R. § 3.307(a)(6). Bardwell v. Shinseki, 24 Vet. App. 36 (2011). Therefore, the Board finds that the greater weight of probative evidence is against finding that the appellant was exposed to herbicides. IV. Skin Disorder The appellant contends that he has a skin disorder that is related to service, to include a skin rash, and to include due to herbicides and/or chemicals. For the reasons that follow, the Board concludes that service connection is not warranted. As discussed above, at the March 2008 Board hearing, the appellant stated that he was sprayed with chemicals while marching. (Tr. at p. 4-5) He stated that chemicals were tested on them and the last two tests, his clothes were taken from him and they were not allowed to take a shower for 10 days. (Tr. at 7) He stated that after the second time, he broke out with a rash on his lower legs. (Tr. at 7-8) He stated that the rash looked like acne. He said he did not go to sick call because it was forty-four miles away and they were not allowed to leave the base area unless there was an extreme emergency. (Tr. at 8) He also stated that the Alaskan Pipeline went through the base. (Tr. at 10-11) He stated that the rash cleared up and after he went to New York following Alaska, he did not have a problem. (Tr. at 11) He stated that every summer he gets a rash on his legs and it gets to the size of a silver dollar. (Tr. at 12) He stated that he has lived with it for forty years. (Tr. at 12) An April 1961 enlistment examination report reflects that the appellant had mild facial acne. A February 1962 service treatment record reflects that the appellant was diagnosed with cellulitis with lymphangitis of left hand due to Staphylococcus aureus. No skin conditions were noted on an April 1964 separation medical examination report. In an April 1964 report of medical history, the appellant did not note any skin conditions. A July 2004 VA treatment record indicated the appellant's skin was intact and neavi were unchanged. A January 2006 VA treatment record reflects that the appellant had an erythematous rash on the right side of the neck. The record indicated that if unresolved, they would contact dermatology. There is no indication there was any follow up. The diagnosis was non-specific eczema/dermatitis. He was prescribed cortisone. Another January 2006 VA treatment record reflects that the appellant had the rash to this neck approximately 2 weeks. The Board notes that the appellant also testified that he has acne. (Tr. at 11) The April 1961 enlistment examination report reflects that the appellant had mild facial acne. Thus, his acne preexisted service. The appellant did not specifically claim service connection for acne or claim that his acne was aggravated by service. Throughout his claim, he specified that he wanted service connection for a skin rash. Thus, the Board has not address whether the appellant's acne was aggravated by service. As discussed above, the Board finds that the evidence is against a finding that the appellant was exposed to herbicides or chemicals in service. The Board also notes that the evidence does not indicate that the appellant has been diagnosed with chloracne and therefore an award of presumptive service connection based on herbicide exposure is not warranted. As a lay person, the appellant is competent to report symptoms capable of lay diagnosis, such as a skin rash. Lay statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the appellant is not competent to report that he has been diagnosed with a particular skin condition. At the March 2008 Board hearing, the appellant stated that every summer he breaks out with a rash on his legs. (Tr. at 12) He stated that he gets the rash twice a year, usually in the spring and then again in the fall. (Tr. at 16) He stated that he had been treated for the rash at VA. (Tr. at 17) The Board finds the appellant's assertion that he has had a rash on his legs since service to be less than credible. In contrast to the appellant's assertion that he has had a skin rash since service, a November 1980 VA treatment record reflects that the appellant reported he did not have any symptoms at the time of exposure to chemicals in service. He stated that the rash on his chest, back and thighs began in 1966. As the appellant was discharged from service in May 1964, the November 1980 VA treatment record indicates his skin rash began approximately 2 years following his discharge from service. As noted above, no skin conditions were noted on the April 1964 separation medical examination report or in the April 1964 report of medical history. Thus, although the appellant claims that he has had a skin rash since service, the Board finds that his statements are less than credible. The Board also notes that although VA treatment records from January 2006 indicated he had a rash on his neck, his recent VA treatment records do not reflect that he reported having a rash on his legs. The appellant has contended that he has a skin disability, to include a rash on his legs, that is related to service. Although a lay person may be competent to report the etiology of a disability, a skin disability is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, the appellant specifically asserts that his skin disability is the result of exposure to chemicals, but as discussed above, the evidence is against a findings that he was exposed to herbicides or chemicals in service. In sum, the Board finds that the evidence is against the appellant's claim for entitlement to service connection for a skin disorder, to include a rash on the legs. The appellant's service treatment records do not reflect that he had a rash in service. Although the appellant testified that he has a rash on his legs now, and he is competent to report that he has a skin rash, there is no evidence of a nexus between the rash and service. The appellant is not competent to provide an opinion as to the etiology of the disability. Additionally, the Board finds the appellant's assertion that he has had a skin rash since service to be less than credible. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). V. Diabetes Mellitus, type II The appellant contends that he is entitled to service connection for diabetes mellitus, type II, due to exposure to chemicals and/or herbicides in service. For the reasons that follow, the Board concludes that service connection is not warranted. As discussed above, to the extent that the appellant may claim service connection for diabetes mellitus due to exposure to herbicide agents in Alaska, the Board finds no service evidence of Agent Orange exposure in Alaska because the Department of Defense records do not support a finding that herbicide agents were used where the appellant was stationed. Additionally, with regard to the appellant's contention of exposure to other chemicals while stationed in Alaska, review of the articles submitted in support of his claim does not indicate that exposure to any other chemical listed in the article may generally cause diabetes mellitus or that the appellant's specific case of diabetes mellitus is due to such exposure. As discussed above, the Board finds that the preponderance of the evidence indicates the appellant was not exposed to herbicides or chemicals while in service in Alaska. The appellant has provided no indication that he is competent to identify or distinguish the herbicides listed in 38 C.F.R. § 3.307(a)(6). Bardwell v. Shinseki, 24 Vet. App. 36 (2011). Therefore, the Board finds that the greater weight of probative evidence is against finding that the appellant was exposed to herbicides. Therefore an award of presumptive service connection for diabetes mellitus, type 2, based on herbicide exposure is not warranted. There is also no competent evidence of record suggesting a connection between exposure to any such chemical or biological agents and diabetes mellitus. The presumptive law applies specifically to herbicides. 38 U.S.C.A. § 1116 (West 2002). This does not mean that actual causation cannot be established, but simply that the presumptions do not apply. Although the Board has taken into account the appellant's belief that his diabetes mellitus was caused by herbicide or chemical exposure, the Board notes that as a lay person, the appellant is not qualified to identify any chemical compound that he may have been exposed to during service without substantive evidence. Although a lay person may be competent to report the etiology of a disability, diabetes mellitus is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Next, where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the evidence does not show competent evidence of a causal relationship between the claimed disorder of diabetes mellitus and any other incident of active service. The service medical records do not show findings, treatment, or diagnosis consistent with diabetes mellitus. The April 1961 entrance examination report does not indicate that the appellant had diabetes mellitus. Diabetes mellitus was not noted on the April 1964 separation medical examination report. At the March 2008 Board hearing, the appellant stated that he was diagnosed with diabetes mellitus in 1991, more than twenty-five years following his discharge from service. (Tr. at 18) The appellant stated that the first time he was told he was borderline diabetic was when he applied for a job at Furniture Corporation in November 1965. (Id.) He stated that he was tested for diabetes mellitus three times between 1965 and 1991, but he did not have diabetes mellitus. (Tr. at 19) The first record of diabetes mellitus is a February 1999 VA treatment record which indicated that his glucose levels had been elevated. A March 2002 VA treatment record indicates that he had a diagnosis of diabetes mellitus, type II. Accordingly, the Board finds that the post-service evidence does not show a diagnosis of diabetes mellitus, until at least 1991, more than 25 years following separation from service, and the appellant does not contend otherwise. The appellant is competent to report symptoms capable of lay observation. The appellant has not contended that he has had symptoms of diabetes mellitus since service. In fact, as noted above, he testified that he was tested for diabetes mellitus between 1965 and 1991, but did not have a diagnosis of diabetes mellitus prior to 1991. Therefore, the Board finds that the competent lay and medical evidence of record does not establish a continuity of symptomatology. Service connection may also be granted when the evidence establishes a medical nexus between service and current complaints. Here, no medical professional has established a relationship between diabetes mellitus and the appellant's service or any incident during the appellant's service. The Board has considered his statements reporting a nexus between his diabetes mellitus and active duty service. However, aside from his contention that his disorder is the result of his in-service exposure to herbicides or chemicals, he has not posited any alternate theory for the cause of his diabetes mellitus. Moreover, even if he made such an assertion, the Board emphasizes that diabetes mellitus is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, there is no competent or credible evidence of record to show that the appellant's diabetes mellitus had its onset during active service or is otherwise related to service. Because the appellant is not professionally qualified to suggest a possible medical etiology for diabetes mellitus, and since there is no competent evidence of record showing that the appellant's diabetes mellitus had its onset during service, was manifest within one year of his separation from service, or is related to any in-service disease or injury, including herbicide or chemical exposure, service connection for this condition must be denied. The Board finds that the preponderance of the evidence is against a finding that diabetes mellitus was incurred in service, manifested to a compensable degree within one year following separation from service, is related to service, or that the appellant was exposed to herbicides or chemicals during service. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a skin disorder, to include a rash on the legs, is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs