Citation Nr: 1307113 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 02-04 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for soft tissue sarcoma. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Service connection for soft tissue sarcoma was denied therein. The Veteran appealed this determination. Pursuant to the Veteran's request, a Central Office hearing was scheduled for mid January 2003. It was not held, however, as his representative submitted a statement in early January 2003 conveying his desire for the hearing to be cancelled. The hearing request accordingly is deemed withdrawn. See 38 C.F.R. § 20.702(e). This matter was remanded for additional development in September 2003, December 2006, April 2010, and September 2011. This development now has been completed or at least substantially completed. Adjudication thus may proceed, if otherwise in order. See Dyment v. West, 13 Vet. App. 141 (1999) (holding that another 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). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." Of note is that this matter originally included the issues of entitlement to service connection for a skin disability (also developed as multiple lipomas and/or neurofibromas) and for heart disease (also developed as a heart condition/disability and arteriosclerotic heart disease), which were denied in a November 2001 RO rating decision. Service connection was granted for a skin disability, currently diagnosed as porphyria cutanea tarda, by the Board in April 2010. Service connection was granted for heart disease by the Board in September 2011. The aforementioned issues therefore no longer are on appeal. Nevertheless, after the Board grant of Service connection for porphyria cutanea tarda in April 2010, no rating decision implemented the grant, assigning a disability rating and effective date. This was noted in a July 2011 deferred rating decision. This matter is brought to the RO's attention for action deemed appropriate. FINDING OF FACT The Veteran currently does not have soft tissue sarcoma. CONCLUSION OF LAW Soft tissue sarcoma was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1116, 1153, 5107 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits, the Board preliminarily notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits as provided for by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant and his representative, if any, of any information and any medical or lay (non-medical) 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability evaluation and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). However, there is no error in failing to provide such prior notice when it was not required at the time of the initial AOJ decision. A content complying notice and subsequent adjudication instead must be provided in these cases. Pelegrini, 18 Vet. App. at 112. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been satisfied. Via letters dated in April and December 2004, the Veteran was informed of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He again was informed of his and VA's respective duties for obtaining evidence via a December 2006 letter. This letter additionally informed him of how VA determines disability evaluations and effective dates if service connection is awarded. Regarding a disability evaluation and effective date, the Veteran was notified soon after the requirement arose to do so (Dingess was decided in 2006). Subsequent adjudication occurred via supplemental statements of the case (SSOCs) dated in May 2008, July 2011, and November 2012. There was a timing error regarding the notification otherwise. Indeed, none of the aforementioned letters predated the initial adjudication by the RO, which in this case also is the AOJ, in December 2001. Yet the error has been cured. Readjudication occurred via the SSOCs noted above as well as a September 2005 SSOC. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (a notice timing problem can be cured by issuance of notice followed by readjudication such as in a SSOC); see also Prickett v. Nicholson, 20 Vet. App. 370 (2006). Pursuant to the duty to assist, VA is required to aid the claimant in the procurement of service treatment records and other pertinent treatment records, whether or not they are in Federal custody. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. §§ 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4). Service treatment records and service personnel records have been obtained concerning the Veteran. He has been requested, to include in September 2011 and September 2012 letters sent in compliance with the Board's September 2011 remand, to identify all VA and non-VA treatment providers. VA treatment records as well as private treatment records from several physicians and facilities have been obtained. Some of the VA treatment records and the treatment records from one private physician were obtained in compliance with the Board's September 2003 remand. All records were procured through VA's efforts, the Veteran submitting them on his own behalf, or both. Treatment records from one private physician identified by the Veteran in June 2003 have not been obtained. However, he indicated that this physician treated him for pain. Any records from the physician therefore are not directly germane to this matter. Documentation concerning the Veteran's participation in lawsuits related to Agent Orange exposure also has not been obtained. The aforementioned April 2004 letter requested that he submit such documentation in compliance with the Board's September 2003 remand. No response was received. Finally, records regarding the Veteran from the Social Security Administration (SSA) have not been obtained. This is despite the Board's December 2006 and April 2010 remands. Due to these remands, the SSA indicated that the Veteran receives SSA disability benefits. Yet it also was indicated in January 2007 and again in April 2010 that the decision awarding him these benefits and the medical records on which it was based could not be located and that further search would be futile. He was advised of this and afforded an opportunity to submit any SSA records in his possession. No response was received. SSA records accordingly formally were found to be unavailable in September 2010. As directed in the Board's September 2011 remand, a VA medical examination was performed specifically for soft tissue sarcoma in November 2012. The examiner reviewed the Veteran's claims file, interviewed him regarding his relevant medical history and current symptomatology, and undertook a physical assessment. Finally, this examiner rendered a medical opinion as to whether or not the Veteran manifests soft tissue sarcoma. All questions necessary to render the determination made herein thus were answered by the examination. It therefore is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation). Acknowledgement is given to the argument of the Veteran's representative in a January 2013 Informal Hearing Presentation that a new VA medical examination is needed. The representative believes the examiner's opinion is insufficient because it was not specifically stated to cover the entire period on appeal. Such a specific statement indeed was not made by the examiner. However, it nevertheless is clear that the opinion provided covers the entire period on appeal. The Board's remand directive requiring an opinion considering the entire period on appeal was set forth by the examiner. Physical assessment of the Veteran concerned his state only as of November 2012, as it was impossible then to assess his state in the past even if it was during the period on appeal. Yet his interview concerned the entire period on appeal. The rationale supplied by the examiner for the opinion further references the period on appeal prior to November 2012, as is set forth and discussed in more detail below. Significantly, neither the Veteran nor his representative has identified any further development necessary for a fair adjudication of the claim that has not been completed. The record also does not indicate any such development. The Board thus finds that VA's duty to assist has been satisfied. 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, 16 Vet. App. at 183. The duty to notify and the duty to assist both having been met, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection The Veteran contends that he has soft tissue sarcoma as a result of his service. In particular, he contends that it is due to his exposure to herbicides such as Agent Orange while serving in the Republic of Vietnam (RVN). Service connection "basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service . . . or if preexisting such service, was aggravated therein." 38 C.F.R. § 3.303(a); 38 U.S.C.A. § 1110. To establish service connection, there generally must be (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Barr, 21 Vet. App. at 303. Service connection also may be established if the evidence of record reveals chronicity or continuity. 38 C.F.R. § 3.303(b). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. Id.; Barr, 21 Vet. App. at 303. Continuity of symptomatology post-service is required where a condition (here, a malignant tumor) in service is noted but is not, in fact, chronic or where a diagnosis of chronicity legitimately may be questioned. Id.; Savage v. Gober, 10 Vet. App. 488 (1997); Walker v. Shinseki, No. 2011-7184, 2013 W.L. 628429 (Fed. Cir. Feb. 21, 2013). Further, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is presumed for some diseases even when there is no record of such disease during service if certain requirements are met. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Applicable here are those for presumptive service connection for diseases associated with exposure to an herbicide agent. The veteran must have served 90 days or more during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). The veteran also must have had exposure to an herbicide agent during service. A veteran is deemed to have been exposed to an herbicide agent if he served in the Republic of Vietnam (RVN) between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West, 12 Vet. App. 164 (1999). Finally, the veteran must manifest a disease linked by VA to exposure to an herbicide agent to a compensable degree within a specified period of time. This period is at any point after service for soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, and mesothelioma). 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Service connection may also be established for a chronic disease, such as a malignant tumor, if manifested to a degree of 10 percent or more within one year of separation of service. 38 C.F.R. § 3.307, 3.309. Affirmative evidence rebutting in-service incurrence or aggravation of a disease associated with exposure to an herbicide agent must be taken into consideration even if the aforementioned requirements are met. 38 U.S.C.A. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d), 3.309(a). Where service connection cannot be presumed, service connection still may be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997); McCartt, 12 Vet. App. at 164. Direct service connection still may be established, in other words. The Board must account for evidence that it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, an assessment of the probative value of the lay evidence in addition to the medical evidence must be undertaken. Lay evidence indeed may be sufficient by itself to support a claim. Barr, 21 Vet. App. at 307. This is the case where the evidence is both competent and credible. Competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Layno v. Brown, 6. Vet. App. 465 (1994). A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his/her personal knowledge. Id. In weighing credibility, discounting of competent testimony or statements from a lay person may occur "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors for consideration therefore include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). "[T]he Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the lack of such evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible. The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The evidence leads the Board to conclude that service connection for soft tissue sarcoma is not warranted. All necessary requirements for establishing entitlement to the benefit are not met. A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of such claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed his claim in December 2001. He has not had soft tissue sarcoma at any point within the period from then to present. The examiner who conducted the November 2012 VA examination opined that there is no soft tissue sarcoma on the Veteran's body. As discussed above, this opinion applies to the entirety of the aforementioned period. The Veteran indicated in his interview having had blisters and lipoma lesions during this period. Such lesions through at least 2005 indeed were reported by him. He is competent in this regard because his symptoms are experienced by him personally. He is credible in this regard because no significant reason exists to doubt him. The examiner noted that lipomas are benign. Soft tissue sarcoma, in contrast, is "a general term for a malignant tumor derived from extraskeletal connective tissue." Dorland's Illustrated Medical Dictionary, 1694 (31st ed. 2007). Of note is that this definition was cited by the Veteran's representative in a March 2003 Informal Hearing Presentation. While they were not undertaken specifically with respect to soft tissue sarcoma, VA examinations also were conducted during the aforementioned period in May 2005 and April 2007. Soft tissue sarcoma was not diagnosed at either. Rather, skin abrasions and lipomas were diagnosed at the former examination. Porphyria cutanea tarda was diagnosed at the latter examination. VA treatment records dated during the aforementioned period do not contain a diagnosis of soft tissue sarcoma. The Veteran asserts that three private physicians have diagnosed him with soft tissue sarcoma. Yet private treatment records from these physicians, whether dated during the aforementioned period or prior thereto, do not contain such a diagnosis. Neither do private treatment records from the other physicians and from facilities, whether dated during the aforementioned period or prior thereto. They rather contain diagnoses of lipomas, neurofibromas, blisters, and other skin disorders. Of further note is that no VA or private treatment records mention any regimen to combat malignancy, such as chemotherapy or radiation. Acknowledgement is given to a February 2003 private treatment record from a psychologist that contains a diagnosis of soft tissue sarcoma. In addition to lay evidence, the probative value of medical evidence may be discounted "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden, 125 F.3d at 1477. No probative value is assigned to the soft tissue sarcoma diagnosis for two primary reasons. First, it was made by a psychologist rather than a physician. It is common knowledge that psychologists are experts with respect to mental conditions. They are not experts with respect to physical conditions such as soft tissue sarcoma. Second, the diagnosis appears to have been made based solely upon the Veteran's report of such. The only assessment that was conducted indeed was mental rather than physical, as is the norm for a psychologist. Mere transcription of a Veteran's self-reported medical history by a medical professional is not sufficient. Leshore v. Brown, 8 Vet. App. 406 (1995). This history must be accurate. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see also Coburn v. Nicholson, 19 Vet. App. 427 (2006). Here, the above discussion shows that the Veteran's self-report of soft tissue sarcoma is inaccurate. As there is no indication that the Veteran has medical knowledge, training, or experience, he is a lay person. A lay person is competent to diagnose a condition only when (1) the lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Conditions such as flat feet, a dislocated shoulder, certain skin ailments, tinnitus, and varicose veins are examples of conditions a lay person is competent to identify. Jandreau, 492 F.3d at 1372; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995). Soft tissue sarcoma, in contrast, is not a condition a lay person is competent to identify. Confirming the presence of malignancy and the specific type of malignancy if it is present requires diagnostic testing. The Veteran has not reported a contemporaneous medical diagnosis. Indeed, this is impossible as soft tissue sarcoma has not been diagnosed. The Veteran finally has not described symptoms supporting a later medical diagnosis of soft tissue sarcoma. This is impossible because, once again, such a diagnosis has not been made. The Veteran's competent and credible symptom complaints, for which he has not indicated the requirement of chemotherapy, radiation, or similar treatment, instead resulted in medical diagnoses of skin abrasions, lipomas, neurofibromas, blisters, other skin disorders, and porphyria cutanea tarda. It is reiterated that service connection for a skin disability, specifically porphyria cutanea tarda, which encompasses these diagnoses, was granted in an April 2010 Board decision. In other words, it appears that the Veteran already is service connected for the symptoms of porphyria cutanea tarda and that he simply is under a false impression that they are attributable to soft tissue sarcoma. In sum, the preponderance of the medical and lay evidence is against finding that the Veteran has had soft tissue sarcoma at any point since he filed his claim. There can be no valid claim absent a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). This is true despite the fact that the Veteran is presumed to have in-service herbicide exposure, since service personnel records reveal that he served in the RVN from September 1967 to August 1968. This also is true despite the fact that his service was for more than 90 days after December 31, 1946, as well as during a period of war. Indeed, all of his almost two years of service was during the Vietnam era. See 38 U.S.C.A. § 101(29)(A); 38 C.F.R. § 3.2(f) (both defining the Vietnam era as beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the RVN during that period). Awarding presumptive service connection due to exposure to herbicides during service or for a chronic disease, like service connection generally, requires the presence of soft tissue sarcoma. Service connection is denied here because this sarcoma is not present now and has not been present at any point since the Veteran filed his claim in December 2001. (CONTINUED ON NEXT PAGE) ORDER Service connection for soft tissue sarcoma is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs