Citation Nr: 1307264 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 06-23 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disorder, to include as secondary to exposure to herbicides. 2. Entitlement to an initial evaluation in excess of 40 percent for prostate cancer with erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from March 1970 to March 1973, including service in Vietnam. In July 2010, the Board of Veterans' Appeals (Board) denied an effective date prior to September 25, 2004 for the award of service connection for prostate cancer with erectile dysfunction, denied an effective date prior to September 25, 2004 for the award of special monthly compensation based on the loss of use of a creative organ, and remanded the issues of entitlement to service connection for a skin disorder and entitlement to an initial evaluation in excess of 40 percent for prostate cancer with erectile dysfunction to the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida for a nexus opinion on the service connection issue and a Statement of the Case (SOC) on the increased rating issue in response to the Veteran's timely Notice of Disagreement. As a VA nexus opinion was obtained in November 2010 and a Veterans Health Administration (VHA) opinion was obtained in November 2012 on the issue of entitlement to service connection for a skin disorder, there has been substantial compliance with the July 2010 remand instructions with respect to the issue of entitlement to service connection for a skin disorder, to include as due to exposure to herbicides. Stegall v. West, 11 Vet. App. 268 (1998). A letter was sent to the Veteran, with a copy to his representative, dated November 28, 2012, in which he was informed of the November 2012 VHA opinion and provided with a copy. He was given 60 days from the date of the letter to review the opinion and submit any additional evidence or argument in support of his claim prior to Board adjudication. No additional evidence was received from the Veteran within the 60 day period. The issue of entitlement to an initial evaluation in excess of 40 percent for prostate cancer with erectile dysfunction is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have a skin disorder that began in service or is the result of a disease or injury incurred in service, to include exposure to herbicides. CONCLUSION OF LAW A skin disorder was not incurred in active military service, nor may it be presumed to have been so incurred; and it is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2011); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter was sent to the Veteran in March 2005, prior to adjudication, informing him of the requirements needed to establish entitlement to service connection. In accordance with the requirements of VCAA, the March 2005 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private medical evidence was subsequently added to the claims file after the letter. In compliance with the duty to notify, the Veteran also was informed in the April 2006 Statement of the Case on disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA skin examination was conducted in November 2010 and a relevant VHA opinion was obtained in November 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and VHA opinion obtained in this case are adequate, as they are predicated on a reading of the service and post-service medical records in the Veteran's claims file. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence that is pertinent to the claim decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the claim. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Analysis of the Claim The Veteran contends that he has a skin disorder due to service, to include his exposure to herbicides. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Additionally, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). For purposes of establishing service connection for a disability resulting from exposure to a 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, 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 and Supp. 2011). The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma and diabetes mellitus (Type 2). The foregoing diseases shall be service connected if a Veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). A disease associated with exposure to herbicide agents listed in § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during service, provided that the disease listed shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran in this case had service in Vietnam and is therefore presumed to have been exposed to Agent Orange. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). The Veteran's service treatment records do not reveal any complaints or findings of a skin disorder, including on his separation examination report in March 1973. A VA general medical evaluation, including review of the claims file, was conducted in August 2005. The Veteran did not complain of any skin problem and no skin disorder was reported. A VA skin evaluation, including review of the claims file, was conducted in November 2010. The Veteran reported the onset of xerosis beginning in approximately 1978, for which he was given topical creams; he also noted a history of recurrent hives. He complained of intermittent xerosis, mostly in the winter months, along the knuckles and anterior knees. The condition would sometimes result in cracking of the skin with pain. Examination revealed dry, rough, hyperpigmented skin along the knuckles of both hands and at the anterior knees. The diagnosis was xerosis of the hands and knees. The examiner concluded that there was no functional limitation and that the condition was not caused by or related to service. The examiner did not find any objective evidence of hives. This case was referred by the Board for a VHA opinion in September 2012 on whether the Veteran's xerosis is at least as likely as not related to herbicide exposure in Vietnam and whether the xerosis is at least as likely as not the direct result of or aggravated beyond its normal progression by a service-connected disability, to include prostate cancer. According to a November 2012 opinion from the Chief of Dermatology at a VA Medical Center, the Veteran's xerosis was not at least as likely as not related to herbicide exposure in service, as there was no evidence in the evidence of record or in the medical literature that supports a causal connection between xerosis and herbicide exposure. It was also concluded that the Veteran's xerosis was not at least as likely as not the direct result of a service-connected disability, to include the Veteran's prostate cancer or its treatment, and that it was not aggravated beyond its normal progression due to service-connected disability. The Chief of Dermatology did not find any direct evidence of record or evidence in the medical literature that supported a plausible relationship between xerosis and prostate cancer or its treatment. The November 2012 VHA opinion included a review of the medical evidence of record and citation to three medical references. An article in J Korean Acad Fam Med entitled "Skin Diseases among Veterans Exposed to Herbicides Used in Vietnam," by Choi JS, Jang JY, Kong UH, Sim HJ, Suh KS, and Kim ST (2005 Jun 26(6): 318-326), was cited in support of the conclusion that there is no competent medical evidence suggesting a connection between herbicide exposure in Vietnam and the subsequent development of a skin disorder manifested by hyperpigmented patches on the neck and upper chest, moderate scaling and xerosis of the arms and legs, and focal scaling on the scalp. The evidence noted above reveals that there were no complaints or findings of a skin problem in service, including on separation evaluation in March 1973, or for many years after service discharge, including on VA general medical evaluation in August 2005. The initial post-service evidence of a skin disorder was not until November 2010, which is more than 37 years after discharge. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In fact, the Veteran has not contended that he had a skin disorder in service; rather, he contends that xerosis began in approximately 1978 due to service exposure to herbicides. The Board would point out, however, that because xerosis is not listed as a presumptive disorder in 38 C.F.R. § 3.309(e), there must be evidence showing a direct connection to service or to a service-connected disability. The only nexus opinions on file, which are each based on a review of the claims file, are against the claim on either a direct or secondary basis. The VA examiner in November 2010 based his opinion against the claim on a review of the claims file and the results of a skin evaluation, while the November 2012 opinion is based on a review of the claims file and relevant medical literature. Consequently, service connection for a skin disorder, to include as due to exposure to herbicides, is not warranted. Due consideration has been given to the written statements on file in support of the Veteran's claim. Although the Veteran can provide competent evidence as to his subjective symptoms, he cannot provide competent evidence in this case to establish the etiology of a current skin disorder. Consequently, service connection for a skin disorder is not warranted. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a skin disorder is denied. REMAND As noted above, one of the reasons that this case was remanded by the Board to the RO in July 2010 was to provide the Veteran with a SOC on the issue of entitlement to an initial evaluation in excess of 40 percent for prostate cancer with erectile dysfunction. However, no SOC was subsequently issued, as there is evidence in the file that the RO considered the April 2006 SOC to have included this issue. The Board would note that the April 2006 SOC does not list this issue in the Issues or Decision sections and does not include a reference to any specific diagnostic codes, although there is a reference in the discussion of the issue of entitlement to an earlier effective date for service connection for prostate cancer with erectile dysfunction associated with herbicide exposure, in the Reasons and Bases section, to what is required for a 60 percent rating. The United States Court of Appeal for Veterans Claims (Court) has held that the filing of a Notice of Disagreement initiates the appeal process, and that the failure of the RO to issue a Statement of the Case is a procedural defect requiring a remand. See Manlicon v. West, 12 Vet. App. 238 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). Additionally, the Courts have held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the RO did not adequately comply with the terms of the Board's July 2010 remand. Id. Consequently, a remand of the issue of entitlement to an initial evaluation in excess of 40 percent for prostate cancer with erectile dysfunction for additional development is warranted. Accordingly, the case is REMANDED for the following action: The AMC/RO must issue a SOC and notification of the veteran's appellate rights on the issue of entitlement to an initial evaluation in excess of 40 percent for prostate cancer with erectile dysfunction. 38 C.F.R. § 19.26 (2012). The veteran is reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2012). If the veteran perfects the appeal as to this issue, the AMC/RO should undertake all appropriate action. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs