Citation Nr: 1300111 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 10-13 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a skin condition of the bilateral feet, to include as secondary to exposure to herbicides, asbestos and/or toxic substances. 2. Entitlement to service connection for a skin condition of the left temple, to include as secondary to exposure to herbicides, asbestos and/or toxic substances. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1975. This matter comes before the Board of Veterans' Appeal (Board) on appeal of a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2010 the Veteran testified in a hearing before the RO's Decision Review Officer (DRO), and in June 2011 he testified in a videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims file. Since the RO's last adjudication of the issues on appeal the Veteran submitted additional evidence directly to the Board in the form of various internet articles relating to health hazards and toxic contaminants associated with service. The Veteran's representative provided a waiver of initial RO jurisdiction, and the Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2012). In August 2011 the Board remanded the issues identified on the title page to the RO for additional development. Thereafter, the RO issued a rating decision in September 2012 that granted service connection for coronary artery disease, hypertension and a right knee condition; as this rating action represents a complete grant of the benefits claimed those issues are no longer before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is credibly shown to have been exposed to aviation fuel during service but not to herbicides, asbestos or other toxic contaminants. 2. Skin conditions of the bilateral feet are not etiologically related to active service, to include exposure to toxic substances. 3. A skin condition of the left temple is not etiologically related to active service, to include exposure to toxic substances. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin condition of the bilateral feet are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303 (2012). 2. The criteria for service connection for a skin condition of the left temple are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A letter in April 2007 satisfied the duty-to-notify provisions, including the disability-rating and effective-date elements of a claim for service connection. The Veteran had ample opportunity to respond prior to issuance of the June 2007 rating decision on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield, 444 F.3d at 1333-34. The Veteran's service treatment records and service personnel records, VA medical treatment records, and private treatment records identified by the Veteran have been obtained. The Board remanded the case for additional development including medical examination, which was performed in October 2011. The Board has reviewed the examination report and finds the RO substantially complied with the requirements articulate in the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), holding that in the context of medical examinations/opinions only substantial compliance, not strict compliance, with the terms of the Board's opinion request is necessary. There is no indication of record that any additional evidence relevant to the issues decided 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 any additional notice or assistance reasonably affects the outcome of this case, any such failure is harmless. See Mayfield, 20 Vet. App. 357: see also Dingess/Hartman, 19 Vet. App. at 486 and Sanders, 129 S.Ct. 1696. Applicable Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In order to prevail on the issue of service connection there must generally be medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Evidence and Analysis Environmental exposures The Veteran's claims for service connection for skin conditions of the bilateral feet and left temple rely in part on claimed exposure to Agent Orange (herbicide), asbestos and/or toxic substances during service. The Board will accordingly consider, as a threshold matter, which (if any) environmental exposures are shown before proceeding to the merits of the individual claims. Herbicides There is a rebuttable presumption of exposure to herbicides if claimant served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Exposure to herbicides may also be presumed if a claimant served during the period between April 1, 1968, and August 31, 1971, in a unit that as determined by the Department of Defense operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, unless there is affirmative evidence to establish the claimant was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6). The Veteran does not contend that he served in the Republic of Vietnam. The Veteran served in the Republic of Korea during the period April 1973 through April 1974, but as his service was after August 1971 there is no presumption of service connection for Agent Orange on the Korean DMZ. The Veteran supports his argument of herbicide usage in Korea by submitting photographs of the flight line in Camp Stanton, Korea. The Veteran points to the absence of foliage in the area and also points to several drums standing in the area. The Veteran also asserts that he served on occasion as an infantryman performing patrol duties along the Korean DMZ, where he would have been exposed to defoliants in the ground. The Board acknowledges the photographs submitted by the Veteran, but the absence of foliage around the flight line does not constitute evidence of Agent Orange. Non-tactical (commercially available) herbicides are routinely used by base engineers worldwide for weed control; these are not tactical herbicides (Agent Orange), and indeed the use of Agent Orange in Korea after August 1971 is disproved by the objective evidence provided by the Department of Defense to VA and available to the Board. The 55-gallon drums pictured in the photographs do not have any visible markings indicating they contain Agent Orange, and there is nothing unusual about the presence of such drums at a military airfield. The Board has reviewed the internet articles submitted by the Veteran that relate to Agent Orange in Korea. While these articles generally complain that Agent Orange use on the DMZ has been under-reported and underappreciated, nothing in these articles demonstrates use of Agent Orange in Korea after 1971, which is two years before the Veteran served in Korea. The Board concludes that exposure to Agent Orange in Korea is not demonstrated. In a Statement in Support of Claim dated in May 2007 the Veteran also cited possible exposure to herbicides while at Fort Dix (New Jersey) and at Aberdeen Proving Ground (Maryland). In June 2007 the Veteran specifically cited having been detailed to mow and spray around World-War II barracks at Aberdeen Proving Ground and asserted the spray was likely to have been Agent Orange. The Veteran's service personnel record corroborates service at both installations. However, a January 2003 report by the Assistant Secretary of Defense Chief Officer for Public Health and Environmental Hazards reported all documented use of Agent Orange outside Vietnam; neither Fort Dix nor Aberdeen Proving Ground is listed in the report. Further, all literature available to the Board shows that Agent Orange is a tactical herbicide that was not used in installations for routine weed control. The Board concludes that exposure to Agent Orange at Fort Dix and Aberdeen Proving Ground is not demonstrated. Finally, the Veteran is diagnosed with skin disorders including verruca of the left temple and tinea pedis, hyperkeratosis and xerosis of the feet. These are not skin disorders presumptively associated with herbicide exposure. Asbestos In cases involving a claim of entitlement based on asbestos exposure in military service as the cause of current disability, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). With asbestos-related claims, VA must determine whether military records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between that exposure and the claimed disease. M21-1, Part IV, 7.21(d)(1) (October 3, 1997). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, demolition of old buildings, carpentry and construction, manufacturing and servicing of friction products such as clutch facings and brake linings, manufacture and installations of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. M21-1, Part IV, 7.21(b)(1) (October 3, 1997). The Veteran's letter in June 2007 specifically cited exposure to asbestos at Aberdeen Proving Ground while he was undergoing training to become a tracked- and wheeled-vehicle mechanic. The Veteran's military occupational specialty (MOS) was automotive repairman, which connotes work involving clutch facings and brake linings, and service personnel records corroborate that he had MOS-related training at Aberdeen Proving Ground as reports. However, there is no presumption of asbestos exposure due to work as an automotive repairman, and no measurement regarding how much, if any, asbestos exposure may be incurred over time in that capacity. In its decision in August 2011 the Board denied service connection for a lung condition (claimed as secondary to exposures to herbicides, asbestos and/or toxic substances), based on a determination that there was no credible evidence of asbestos exposure in service and no current disability of the lungs. Radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum; see M21-1, Part IV, 7.21(a)(1) (October 3, 1997). The absence of any demonstrable asbestos-related lung disease is evidence that the Veteran does not have a history of exposure to asbestos. Further, the Veteran's diagnosed skin disorders are not associated with asbestos exposure. Aviation fuel The Veteran testified before the Board in June 2011 that he had been exposed during service to aviation fuel (JP-4). The Veteran's service as a helicopter maintenance specialist is consistent with exposure to petroleum-based solvents and to JP-4, and the Board's decision in August 2011 found as fact that he had been exposed to jet fuel during service. Other toxins The Veteran asserts having been exposed to various toxic substances during service at military installations including Fort Dix (New Jersey) and Aberdeen Proving Ground (Maryland) as well as installations in the Republic of Korea. In support of this contention he has presented various internet articles asserting those installations have residual contamination of soil and water. The Board acknowledges the internet articles submitted regarding toxic contamination at military bases. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). However, treatise evidence alone is usually "too general and inconclusive" to establish a medical nexus. Sacks v. West, 11 Vet. App. 314, 317 (1998). The only military installation at which VA has found a relationship between general toxic contamination and subsequent health problems among residents is Camp Lejeune, North Carolina, resulting from water contamination at that base; there is no indication the Veteran served at Camp Lejeune. While the Veteran may arguably have been exposed to various toxins in Korea, Fort Dix and Aberdeen Proving Ground, there is no indication as to what those toxins may have been or the amount of exposure (if any). The Board concludes that exposure to toxic substances other than aviation fuel is not shown. Service connection for skin conditions of the bilateral feet and left temple The Veteran asserts his claimed skin conditions of the bilateral feet and left temple are associated with exposure to environmental hazards in service including asbestos, herbicides and/or toxic substances. He submitted a letter in June 2010 asserting that skin problems with his feet are associated with some sort of contaminate that leaked into his combat boots, and he asserted to a VA examiner in October 2011 that some of his skin problems may be due to insecticide that was issued in service. Service treatment records (STRs) show no indication of skin disorders on the feet or head. The Veteran had a separation physical examination in April 1975 in which his self-reported Report of Medical History specifically denies history of skin diseases; the corresponding Report of Medical Examination shows clinical evaluation of the skin as "normal" except for a genital wart (condyloma acuminatum). Treatment notes by Dr. Gregory Terry dated in October 2003 show no indication of atypical moles, dry skin, pruritis or rashes. In March 2006 the Veteran presented to Dr. Terry with an atypical mole on the left temple, which had been present for 1-2 months and caused the Veteran concern about possible cancer; a shave biopsy performed by Dr. Terry showed atypical moles consistent with verruca vulgaris. A punch biopsy Dr. Terry in September 2007 confirmed a diagnosis of verruca of the left temple, also characterized as actinic keratosis/irritated seborrheic keratosis. Regarding skin disorders of the feet, an April 2007 treatment note by Dr. Terry noted an impression of tinea pedis. The Veteran had a VA-contracted examination in April 2011 in which he was diagnosed with tinea pedis and onychomycosis of the bilateral great toes; the examination report is silent in regard to etiology or onset of these conditions. The Veteran had a VA examination of the skin in October 2011, performed by an examiner who reviewed the claims file. The Veteran asserted to the examiner that his skin problems were attributable to exposure to Agent Orange and various chemicals while working on the DMZ in Korea, as well as insecticide that he put on his face and arms and caused a wart on his left temple. The Veteran reported the wart was resolved by removal but that his tinea pedis still caused fissuring and scaling. The examiner performed a clinical examination and noted observations in detail. The examiner diagnosed history of verruca vulgaris, now resolved, and hyperkeratosis and xerosis of the feet, most likely not tinea pedis. The examiner stated an opinion that verruca and keratosis of the feet are not likely caused by or a result of active service. Verruca is a viral disorder and not due to reported exposure to chemicals or insecticides. Hyperkeratosis is common in the Veteran's age group and is due to lack of moisturizing emollients and not using any exfoliating treatments. The Board finds that competent and uncontroverted medical opinion, in the form of the VA examination report dated in October 2011, shows the Veteran's claimed skin disorders of the left temple and bilateral feet are not likely related to service. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The opinion provided by the VA examiner satisfies all three elements cited by Nieves and is adequate to support a decision by the Board. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition to the medical evidence, the Board has considered the lay evidence offered by the Veteran in the form of his correspondence to VA, his testimony before the Board and his statements to various medical providers and examiners. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). The VA examiner in October 2011 has provided a clear medical basis for finding that the Veteran's theory of causation is not correct and that his current skin disorders are not in fact related to service. The Veteran may genuinely believe that he has skin disorders of the left temple and bilateral feet that are a result of exposure to aviation fuel during service, but as a layperson the Veteran cannot provide a competent opinion on a matter as complex as a diagnosis and his views are of no probative value. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim; there is no doubt to be resolved; service connection for skin disorders of the left temple and bilateral feet is not warranted. ORDER Service connection for a skin condition of the bilateral feet is denied. Service connection for a skin condition of the left temple is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs