Citation Nr: 1303289 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 11-13 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for Seborrheic keratosis (claimed as moles), to include as due to exposure to ionizing radiation. 2. Entitlement to service connection for a psychiatric/psychological disorder. ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's claims for service connection for Seborrheic keratosis, claimed as moles; and, service connection for psychological problems. The issue of a dental condition, claimed as a teeth condition, 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 it and it is referred to the AOJ for appropriate action. Please note 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). The issue of entitlement to service connection for Seborrheic keratosis; claimed as moles, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have any currently diagnosed psychiatric/psychological disorder. CONCLUSION OF LAW Service connection for a psychiatric/psychological disorder is not warranted. 38 U.S.C.A. §§ 1110, 1112, 5103(a), 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties of Notice and Assistance VA has certain notice and assistance requirements. 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 (2012). Upon receipt of a substantially complete application for benefits, VA must notify the Veteran of what information or evidence is needed in order to substantiate the claim, and it must assist the Veteran by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In claims for service connection, proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service connection claim, including: (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 of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. With respect to the Veteran's claim for psychological problems, a letter dated August 2009 which was sent to the Veteran fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). Furthermore, this letter described how appropriate disability ratings and effective dates were assigned. Finally, 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. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. The Veteran's service treatment records and available medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. In the Veteran's VA Form 9, he requested a hearing before the Board. In a statement received in November 2012, he withdrew such request. The Board finds that the record contains sufficient evidence to make a decision on the claim. The Board recognizes that the Veteran has not been afforded a VA examination in this case. However, no examination is necessary to decide this claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether 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. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, no examination is necessary in order to adjudicate the claim because there is no evidence to satisfy the McLendon criteria discussed above. As will be discussed below, the Veteran does not have a current psychiatric/psychological disability, nor does the probative evidence of record establish persistent or recurrent symptoms of a disability. In such situations, VA examinations need not be provided. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 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 Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Entitlement to Service Connection for Psychological Problems The Veteran contends that he is entitled to service connection for psychological problems due to his exposure to radiation while stationed at the Atomic Bomb Proving Grounds in Nevada between January 1955 and April 1955. Specifically, the Veteran asserts he worries about his children, grandchildren, and great-grandchildren and the health impacts that his exposure to radiation has, or will have on them. The Veteran further asserts he has had psychological problems from the moles on his back and eating without teeth. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). Service connection for a disability which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). These diseases include leukemia; cancer of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary tract, bone, brain, colon, lung, or ovary; multiple myeloma; lymphomas (except Hodgkin's disease); primary liver cancer; and bronchiolo-alveolar carcinoma. A "radiation-exposed" veteran is one who participated in a radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, other "radiogenic" diseases found in an ionizing radiation-exposed veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. These radiogenic diseases include: leukemia; cancer of the thyroid, breast, lung, bone, liver, skin, esophagus, stomach, colon, pancreas, kidney, urinary bladder, salivary gland, ovary, rectum, prostrate, or any other cancer; multiple myeloma; posterior subcapsular cataracts; non-malignant thyroid nodular disease; parathyroid adenoma; tumors of the brain and central nervous system; and lymphomas (other than Hodgkin's disease). 38 C.F.R. § 3.311(b)(2). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether there is "no reasonable possibility" that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As an initial matter, a September 2005 letter from the Defense Threat Reduction Agency (DTRA) confirmed the Veteran's participation in a radiation-risk activity, specifically, Operation TEAPOT, conducted at the Nevada Test Site in 1955. However, psychiatric or psychological problems are not among the listed disorders for which presumptive service connection applies, nor are such problems a "radiogenic disease" as defined by regulation. Therefore, the Veteran cannot receive service connection under these theories of entitlement, regardless of his participation in Operation TEAPOT. As for establishing service connection on a direct basis, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. See also Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Unfortunately, in this particular case at hand, the Veteran has not submitted any competent and credible evidence showing he currently has any psychological problems which, as mentioned, is the first requirement of any service connection claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim). The Veteran's service treatment records make no reference to any psychological problems. The Veteran's separation examination was normal. Additionally, the Veteran's post-service treatment records are devoid of any complaint of, diagnosis, or treatment for any psychological problems. Rather, the Veteran has denied mental symptoms since service. Specifically, the Veteran denied having mental symptoms during an examination for the Registry of Ionizing Radiation Exposure and Current Health Problems in September 2005. The Veteran denied depression, being nervous and insomnia in a VA treatment record in November 2005. The Veteran further denied depression, anxiety and changes in sleep pattern in a VA treatment record from July 2008. The only evidence of record addressing the Veteran's claimed psychological problems are the Veteran's statements that he worries, and has worries, about his children, grandchildren, and great-grandchildren. There is simply no competent and credible evidence showing he has a current diagnosis of any psychiatric or psychological disorder, despite his statements to the contrary. Therefore, there is no current disability to attribute to his military service, under any theory of entitlement. See Brammer, 3 Vet. App. at 225. Since resolution of this claim ultimately turns on whether the Veteran has a current diagnosis of psychological problems, his lay statements that he worries have no bearing on the outcome of this claim. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In other words, he is not competent to say whether he currently has psychiatric/psychological disorder. See Washington v. Nicholson, 19 Vet. App. 363 (2005); Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for psychological problems. And inasmuch as the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in his favor, and this claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a psychiatric/psychological disorder is denied. REMAND The Veteran contends that he is entitled to service connection for seborrheic keratosis due to reported exposure to radiation while on active duty service. As addressed above, DTRA confirmed that the Veteran participated in a radiation-risk activity while on active duty service. The medical evidence of record establishes that the Veteran has a current diagnosis for seborrheic keratosis. Post-service treatment records reflect that the Veteran was treated for seborrheic keratosis beginning in 2001. In a private medical treatment record from June 2001, a private physician reported that the Veteran's moles began 25-50 years ago, at the time the Veteran was in the Army. The physician reported "that there are other patients who were never present during [ ] A-bomb tests who still have these numerous types of [Seborrheic keratosis] and so there really isn't any scientific proof that his presence during these bomb tests caused him to have these." However, the physician did not offer an etiology of the Veteran's moles or seborrheic keratosis, nor did the physician opine as to whether the Veteran's moles or seborrheic keratosis were related to his active duty service, to include exposure to radiation. The Board finds that a VA examination is warranted to address the nature and etiology of any current diagnosed seborrheic keratosis and to opine as to the likelihood that such is etiologically related to service. As discussed above, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the McLendon criteria are met in this case. The Veteran has a current diagnosis of seborrheic keratosis. The evidence also shows that the Veteran was exposed to radiation during his active duty service. However, it is unclear whether the current diagnosis is related to the Veteran's military service, specifically to include his exposure to radiation. Therefore, the Board must obtain a medical opinion before adjudicating this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4). If the VA examiner finds that the Veteran's seborrheic keratosis is a radiogenic disease or may be related to radiation exposure in service, the RO must then obtain a dose assessment pursuant to 38 C.F.R. § 3.311(a)(1). After it is determined by the dose assessment that the Veteran was exposed to radiation, the RO should then refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b). The Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1). After referral, the Under Secretary for Benefits must then determine the likelihood that the Veteran's exposure to radiation in service resulted in the disease. 38 C.F.R. § 3.311(c)(1). If the Under Secretary for Benefits is convinced that sound scientific and medical evidence supports the conclusion that it is at least as likely as not the Veteran's Seborrheic keratosis resulted from exposure to radiation in service, the Under Secretary for Benefits notify the RO of that finding in writing and will set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in 38 C.F.R. § 3.311(e). 38 C.F.R. § 3.311(c)(1)(i). Conversely, if the Under Secretary for Benefits determines there is no reasonable possibility that the Veteran's seborrheic keratosis resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction, in writing, again setting forth the rationale for that conclusion. 38 C.F.R. § 3.311(c)(1)(ii). Further, the record suggests that the Veteran received treatment for a tumor on his shoulder from the VA medical center (VAMC) in Wilkes Barre, Pennsylvania. Specifically, in a statement dated June 2009, the Veteran stated that he had an operation on his shoulder for a tumor, but did not know if the records contained information regarding the moles on his back. As VA medical records are constructively of record and must be obtained, the RO should obtain such records. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO must obtain copies of all relevant VA treatment records, specifically to include treatment records from the Wilkes Barre VAMC. Such records must either be printed and associated with the Veteran's paper claims file or uploaded into the Veteran's electronic file contained in the Virtual VA system. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of his Seborrheic keratosis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should indicate whether the Veteran's Seborrheic keratosis may be considered to be a radiogenic disease, or may be causally or etiologically related to the Veteran's active duty service, specifically to exposure to radiation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. Thereafter, if the examiner indicates that the seborrheic keratosis is a radiogenic disease or may be related to radiation exposure in service, the RO must then obtain a dose assessment pursuant to 38 C.F.R. § 3.311(a)(1). Thereafter, the Veteran's claim should be referred to the Under Secretary for Benefits, pursuant to 38 C.F.R. § 3.311(b)(4). After referral, the Under Secretary for Benefits must then determine the likelihood that the Veteran's exposure to radiation in service resulted in the disease. If any additional development is needed, such development must be completed prior to readjudicating the Veteran's claim. 4. After the aforementioned development has been completed, the RO should readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs