Citation Nr: 1303772 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-40 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a skin disability, including actinic keratosis, psoriasis, and herpes zoster, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) regional Office (RO) in Winston-Salem, North Carolina. FINDING OF FACT A skin disability, including actinic keratosis, psoriasis, and herpes zoster, were not present in service and are not etiologically related to in-service herbicide exposure or to service in any other way. CONCLUSION OF LAW A skin disability, including actinic keratosis, psoriasis, and herpes zoster were not incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1116 (West 2002); 38 C.F.R. § 3.303, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted 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) (2012). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). VA regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; ischemic heart disease; chronic B-cell leukemias; multiple myeloma; Non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). For many of these diseases, if all other criteria are met and the disease becomes manifest to a degree of 10 percent of more at any time after service, service connection is presumed. The exception is for chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy; these diseases must have become manifest to a degree of 10 percent or more within one year after the date on which the veteran was last exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6). Here, there is no evidence that the Veteran currently has any of the diseases listed in 38 C.F.R. § 3.309(e). Accordingly, service connection cannot be granted on a presumptive basis under 38 C.F.R. § 3.307. However, the absence of a disease on the presumptive list does not preclude a veteran from otherwise proving that his disability resulted from exposure to Agent Orange or otherwise linking his skin condition to service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board will still consider whether entitlement to service connection can be granted on a direct basis for a skin disability, including actinic keratosis, psoriasis, and herpes zoster, to include as due to exposure to Agent Orange in service. Recent VA treatment records include diagnoses of actinic keratosis, psoriasis, and resolved herpes zoster. Thus, the Veteran has a current skin disability. At issue is whether any of his skin conditions are related to service. In his December 2008 claim, the Veteran claimed his skin condition resulted from his exposure to Agent Orange in Vietnam. In his April 2009 statement the Veteran stated that in the spring of 1967 he was treated for prickly heat while in service. In September 2010 he described that 1967 skin condition as being non-diagnostic and stated that it consisted of severe skin irritation over his entire body involving itching and rashes. He stated that he had the symptoms for several years afterwards and sought no further treatment until being contacted by the VA. Service treatment records do not include a mention of the 1967 skin condition the Veteran described being treated for. The only dermatology record is from 1966 when the Veteran had three warts removed (clearly indicating treatment for a skin issue, but clearly for a problem that was not chronic). He reported no skin disease at his separation examination in September 1967 and normal skin evaluation was found on examination. Post-service, the first mention of complaints of or treatment for a skin condition is in 1999. In December 1999 the Veteran was seen at the VA for knee pain and inquired whether his psoriasis might be liked to his arthritis. The records reflect that the Veteran reported having psoriasis for five to six years, probably longer. He was diagnosed with actinic keratosis in September 2004 and herpes zoster in February 2007. His herpes zoster had resolved by August 2007. To the extent the Veteran has attempted to claim that his current skin condition had onset in service and continued to the present, the Board finds the assertion not to be accurate. Not only is there no evidence the Veteran was treated for any skin problems in service (other than the removal of three warts) or for decades after service, but the Veteran himself has provided contradictory statements concerning when his skin condition actually began. Therefore, the Board finds that entitlement to service connection for a skin disorder cannot be granted based on continuity of symptomatology. The Board has also considered the Veteran's theory that his skin problems developed because of exposure to Agent Orange or other herbicides in service. Unfortunately, there is no evidence of record to support the Veteran's theory. The Veteran's skin conditions are not among the disabilities presumed to be service connected due to herbicide exposure in service. 38 C.F.R. §§ 3.309(e), 3.307. None of his treatment providers has offered an opinion concerning the etiology of his disability. The only evidence in support of the Veteran's theory of entitlement is his own unsubstantiated lay testimony. Although the Veteran has offered his opinion as to the etiology of his skin conditions, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183 (1997). The Board finds that the question of whether the Veteran's current skin disabilities are due to his alleged herbicide exposure in service is too medically complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. The Veteran's opinion of the etiology of his current disability, however sincere, is not competent evidence and is not probative. As there is no evidence that the Veteran's current skin conditions had onset in service or for many years after service or that they were caused by or related to the Veteran's active military service, entitlement to service connection for his skin disability must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in December 2008 and April 2009. In the letters, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection and of the appellant 's and VA's respective duties for obtaining evidence. In the letters the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. The Veteran also submitted personal statements. 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 claim that has not been obtained. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(4). The Veteran was not afforded a VA examination of any of his claimed disabilities, but none is required. 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 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. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed disabilities are related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence and not supported by accurate statements of continuity of symptomatology. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Significantly, neither the Veteran nor his or representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a skin disability, including actinic keratosis, psoriasis, and herpes zoster, to include being secondary to exposure to herbicide, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs