Citation Nr: 1307389	
Decision Date: 03/05/13    Archive Date: 03/11/13

DOCKET NO.  10-40 932	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for arthritis (claimed as joint/muscle pain), to include as a qualifying chronic disability under 38 C.F.R. § 3.317.

2.  Entitlement to service connection for a skin disorder, to include candidiasis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.

3.  Entitlement to service connection for a dental condition for compensation purposes, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.

4.  Entitlement to service connection for stuttering, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, as due to herbicide exposure, or as secondary to a dental disorder.


REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

Appellant and his mother


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran had active service from October 1985 to February 1986 and September 1990 to May 1991.  The record reflects additional service in the National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated by the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina, which denied the above claims.

In June 2011, the Veteran testified at a personal hearing over which a decision review officer (DRO) of the RO presided.  A transcript of that hearing has been associated with his claims file.
 
The Board notes that the Veteran also perfected an appeal on the issue of entitlement to service connection for posttraumatic stress disorder (PTSD).  However, service connection for PTSD was established by a June 2011 DRO decision.  As this represents a complete grant of the benefit sought on appeal, the issue is no longer before the Board.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).

As an additional matter, the Veteran's accredited representative asserted in a February 2013 written brief presentation that there was clear and unmistakable error under 38 C.F.R. § 3.156(c) for the effective date of service connection for PTSD.  The representative also indicated that the evidence of record warranted a disability rating in excess of the current 50 percent for this disability.  Thus, earlier effective date and increased rating claims for the Veteran's PTSD have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The Board further notes that while the RO appears to have only addressed the Veteran's dental claim for compensation purposes, the United States Court of Appeals for Veterans Claims (Court) has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381.  Mays v. Brown, 5 Vet. App. 302 (1993).  In dental claims, the RO adjudicates the claim for service connection and the VA Medical Center adjudicates the claim for outpatient treatment.  As this matter stems from an adverse determination by the RO, the appeal is limited to the issue of service connection for a dental disorder.  Therefore, in light of the above and the recent amendment to 38 C.F.R. § 3.381(a-b) that are effective February 29, 2012, (See 77 Fed. Reg. 4469 (Jan. 30, 2012)), the claim for service connection for a dental disorder for obtaining VA outpatient dental treatment is referred to the RO for additional referral to the appropriate VA medical facility.  See also 38 C.F.R. § 17.161

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

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).

For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's skin claim.  Accordingly, this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT

1.  The record does not reflect the Veteran was exposed to herbicides while on active duty, and his arthritis, dental, and stuttering conditions are not conditions presumptively associated with such exposure.

2.  The Veteran had active service in the Southwest Asia Theater of Operations from November 1990 to April 1991.

3.  The Veteran's complaints of joint/muscle pain have been attributed to arthritis.

4.  The Veteran's arthritis was first shown years after his 1990 to 1991 period of active service.

5.  The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's current arthritis developed as a result of his active service.

6.  The Veteran does not have a dental condition or disability, to include periodontal disease or extracted teeth, which are due to combat wounds or other trauma during his active service. 

7.  The Veteran's stuttering was first noted years after his separation from service, and no probative evidence is of record which relates the disability to his active service.


CONCLUSIONS OF LAW

1.  The criteria for the establishment of service connection for arthritis (claimed as joint/muscle pain), to include as a qualifying chronic disability under 38 C.F.R. § 3.317, are not met.  38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2012).

2.  The criteria for the establishment of service connection for a dental condition for compensation purposes, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, are not met.  38 U.S.C.A. §§ 1110, 1117, 1131, 1721, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317, 3.309, 3.381, 4.150, 17.161 (2012).

3.  The criteria for the establishment of service connection for stuttering, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, as due to herbicide exposure, or as secondary to a dental disorder, are not met.  38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

In accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012).  The Court has indicated that VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In this case, the Veteran was sent VCAA-compliant notification in December 2007 and November 2008 which addressed his then claim of service connection for a muscle condition.  The Veteran subsequently clarified that his muscle condition was his present arthritis of multiple joints.  He was also sent notification regarding his dental claim in July 2010; and for his stuttering claim in January 2010, March 2010, and July 2010.  In pertinent part, these letters informed the Veteran of what was necessary to substantiate these appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information used by VA to determine disability rating(s) and effective date(s) should service connection be established.  All of these claims were last adjudicated below by a December 2012 Supplemental Statement of the Case, which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  

In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied.  The Veteran's service treatment records are on file, as are various post-service medical records.  The Board acknowledges that the Veteran's representative asserted in the February 2013 written brief presentation that the service treatment records appeared to be incomplete, and specifically referred to the lack of a mobilization examination.  However, nothing in the evidence available for the Board's review otherwise indicates that all of the Veteran's available service treatment records were not provided when this evidence was requested and sent to VA.  This conclusion is supported by the presumption of regularity that which holds that government officials are presumed to have properly discharged their official duties.  See Saylock v. Derwinski, 3 Vet. App. 294, 395 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15  (1926), "[p]rinciples of administrative regularity dictate a presumption that Government officials 'have properly fulfilled their official duties.'").  Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption.  Ashley v. Derwinski, 2 Vet. App. 307 (1992).

The Board also notes that the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the June 2011 DRO hearing.  Nothing indicates he has identified the existence of any relevant evidence regarding his arthritis claim that has not been obtained or requested.  For example, he has not indicated that there is outstanding evidence which relates the etiology of his current arthritis, dental condition, and stuttering to his military service.  In fact, he indicated at his June 2011 hearing that his doctor had not provided any opinion as to the etiology of his arthritis.  See Transcript p. 3.

With respect to the June 2011 hearing, the Court recently held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the DRO accurately noted the Veteran's appellate claims, and asked questions to clarify his contentions and medical history.  Moreover, the Veteran, through his testimony and other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate his arthritis claim.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the June 2011 hearing.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. 

The Board further notes that the Veteran was accorded a VA medical examination in April 2010 which diagnosed, in part, arthritis, while a subsequent July 2010 addendum included an opinion as to the etiology thereof.  As this opinions was based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds it is supported by an adequate foundation.  No competent medical evidence is of record which specifically refutes the findings of the VA examiner regarding the etiology of the Veteran's arthritis, and the Veteran has not otherwise identified any prejudice therein.  Accordingly, the Board finds that this examination is adequate for resolution of this case.  

The Board notes that while the April 2010 VA examination included findings regarding the Veteran's claimed stuttering and dental condition, no opinion was promulgated regarding the etiology of either condition.  However, as detailed below the record does not contain any relevant in-service findings regarding these claimed disabilities, and the Veteran has indicated that they developed after his separation from service.  Consequently, no such development is warranted in this case.

In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

General Legal Criteria

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the Veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves.  38 U.S.C.A. § 101(23)(A).  Reserves includes the National Guard.  38 U.S.C.A. § 101(26), (27).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected.  38 C.F.R. § 3.310.  The Court has held that when aggravation of a service member's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected.  Allen v. Brown, 7 Vet. App. 439, 446 (1995).


Analysis - Gulf War Exposure and Agent Orange Exposure

The Veteran initially indicated that he had joint/muscle pain, dental condition, and stuttering due to Gulf War exposure.  Various legal provisions apply specifically to compensation claims from Persian Gulf War Veterans.  Except as provided in 38 C.F.R. § 3.317(c), VA shall pay compensation in accordance with Chapter 11 of Title 38, United States Code, to a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317(b), provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(i) and (ii) (except as to delimiting date). 

For purposes of 38 C.F.R. § 3.317, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(2) . 

For purposes of 38 C.F.R. § 3.317, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic.  The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(3). 

For the purposes of 38 C.F.R. § 3.317(a)(1), signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. 
§ 3.317(b). 

Compensation shall not be paid under 38 C.F.R. § 3.317: (1) if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(c). 

The Persian Gulf War provisions of 38 U.S.C. § 1117 were amended, effective March 1, 2002.  See Veterans Education and Benefits Expansion Act of 2001, Public Law No. 107-103, 115 Stat. 976  (2001).  In pertinent part, the new law provides that, in addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection.

In this case, the record reflects the Veteran had active service in the Southwest Asia Theater of Operations from November 1990 to May 1991.  Thus, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are for consideration in the instant case.  However, his joint/muscle complaints have been attributed to arthritis, which is a known clinical diagnosis.  Further, his dental and stuttering complaints are not the type of conditions generally associated with such service as detailed above by the provisions of 38 C.F.R. § 3.317(b).  Moreover, none of these complaints have been attributed to a medically unexplained chronic multisymptom illness recognized by VA as being related to Persian Gulf service such as fibromyalgia.  As such, service connection is not warranted for the claimed disabilities pursuant to the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.

The Veteran has also indicated that his claimed disabilities are due to Agent Orange exposure.  If a Veteran was exposed to a 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)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied:  chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), 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), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease.  38 C.F.R. § 3.309(e).  For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to a herbicide agent and resolves within two years of the date of onset.  38 C.F.R. 
§ 3.309(e), Note 2.

For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  38 C.F.R. § 3.307(a)(6)(i).  Agent Orange is generally considered a herbicide agent and will be so considered in this decision.

In this case, the Board notes that there is no evidence which supports the Veteran's contention of Agent Orange exposure.  For example, the record does not indicate that he had active service in the Republic of Vietnam during the Vietnam War era for which such exposure is presumed under 38 U.S.C.A. § 1116.  No such exposure is otherwise indicated by the evidence of record other than the Veteran's general contention.  The Court in Bardwell v. Shinseki, 24 Vet. App. 36 (2010) held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service.  Moreover, even if the Veteran did have such exposure, his arthritis, dental condition, and stuttering are not among the list of conditions presumptively associated with such exposure under 38 C.F.R. § 3.309(e).  The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 57586-57589 (1996); Notice 68 Fed. Reg. 27,630-27,641 (2003); 72 Fed. Reg. 32395 (2007); 75 Fed. Reg. 32540 (2010).

The Board must now address whether service connection is otherwise warranted for arthritis, dental condition, and/or stuttering.

Analysis - Arthritis

As an initial matter, arthritis is an internal condition that requires specific medical testing to diagnose.  In other words, it is not a condition subject to lay observation and requires competent medical evidence to diagnose.  Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, his contentions cannot constitute competent medical evidence.  38 C.F.R. § 3.159(a)(1).

The Board acknowledges that arthritis is recognized as a chronic disease subject to service connection on a presumptive basis pursuant to the provisions of 38 C.F.R. §§ 3.307 and 3.309(a).  However, this presumption only applies if the arthritis is found to be present to a compensable degree within the first post-service year.  In this case, there was no indication of arthritis on the Veteran's April 1991 separation from service examination.  Rather, the evidence of record, to include the Veteran's own testimony, indicates that his arthritis was first diagnosed in 2007, years after his separation from active service in 1991.  The record also indicates that his service in the National Guard ended in 2004, which is also several years prior to the initial diagnosis of arthritis.  Therefore, service connection is not warranted pursuant to these presumptive provisions.

In the recent case of Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the Federal Circuit held that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) are only applicable to those conditions recognized as being chronic under 38 C.F.R. § 3.309(a), which the Board has already acknowledged applies to the Veteran's arthritis.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  In this case, however, the Veteran himself testified that his joint problems did not develop until after his 1991 period of active service.  For example, he testified that his wrist problems developed in 1995 or 1996, and that his knee problems developed in 2000.  See Transcript pp. 4-7.  In short, the Veteran has not alleged continuity of symptomatology in this case.

The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.).  

The Veteran has indicated that he believes his arthritis developed as a result of the activities he engaged in while on active duty, to include handling of a machine gun while on active duty from 1990 to 1991.  See Transcript pp. 2, 8.  However, as the Veteran himself has acknowledged that his joint problems did not develop until years after service, and arthritis is not subject to lay diagnosis, the Board finds that competent medical evidence is required to determine the etiology of the Veteran's arthritis.  The Board has already determined that the Veteran's contentions do not constitute competent medical evidence.

In this case, the only competent medical evidence to address the etiology of the Veteran's arthritis is that of the April 2010 VA examination in the July 2010 addendum.  The April 2010 VA examination diagnosed, in part, left wrist arthritis.  In the July 2010 addendum, the VA examiner opined that it was less likely than not related to a specific event or exposure while serving in Southwest Asia.  In support of this opinion, the examiner stated that he did not find any documentation in the claims file to conclude that this condition had a clear and specific etiology in diagnosis.

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

In this case, the VA examiner indicated he was aware of the Veteran's medical history based upon review of the VA claims folder.  Second, the examiner's opinion is not equivocal or speculative in nature.  Third, the examiner provided stated rationale in support of this opinion to the effect that there was no clear documentation of the disability in the record to relate it to service.  The Board observes that this rationale is consistent with the documented medical history, to include the Veteran's own testimony that his joint problems, subsequently diagnosed as arthritis, did not develop until years after his 1990 to 1991 period of active duty.

The Veteran has also indicated in a July 2011 statement that his arthritis and skin condition was due to a tick, and submitted medical treatise evidence on the effects of Rocky Mountain spotted fever, a tick-borne disease transmitted to humans by the bite of infected tick species.  However, nothing in the Veteran's service treatment records, to include from his National Guard service, indicates he had Rocky Mountain spotted fever while on military duty.  Moreover, the medical treatise evidence indicates that symptoms of Rocky Mountain spotted fever includes fever, headache, abdominal pain, muscle pain, and a rash.  Nothing in this evidence suggests that it leads to the development of arthritis.

The Board further notes that no other basis for establishing service connection is demonstrated by the evidence of record.  As already noted, the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable in this case.  The Veteran has not indicated, nor does the record otherwise suggest, that his arthritis was due to a disease or injury during ACDUTRA or a disease during inactive duty training.  Further, there is nothing to suggest that the arthritis is secondary to his PTSD, which is his only service-connected disability at this time, so as to warrant consideration of the secondary service connection provisions of 38 C.F.R. § 3.310.

For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's current arthritis developed as a result of his active military service.  As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, the benefit sought on appeal with respect to this claim must be denied.

Analysis - Dental

With respect to the dental claim, service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.  Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible.  See Simmington v. West, 11 Vet. App. 41 (1998).  For loss of teeth, bone loss through trauma or disease such as to osteomyelitis must be shown for purposes of compensability.  The loss of the alveolar process as a result of periodontal disease is not considered disabling.  See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150 . 

In this case, the Veteran does not have a dental condition or disability, to include periodontal disease or extracted teeth, which are due to combat wounds or other trauma during his active military service.  The record does not indicate any dental treatment during his 1990 to 1991 period of active service to include dental trauma or disease such as osteomyelitis.  In fact, there is no change to his teeth noted from the time of a May 1989 service examination and his April 1991 separation examination.  There is also no indication of any such dental trauma or disease in the other service treatment records on file.  In fact, the Veteran testified in June 2011 that he had no dental trauma during service.  See Transcript pp. 13-14.

The Veteran also indicated at his June 2011 hearing that he began to lose teeth approximately 9 months prior to the hearing; i.e., years after his separation from his 1990 to 1991 service.  See Transcript p. 15.  Although he contended that the condition was due to the fact that he did not receive proper dental treatment at the time of his separation from service, as already noted he indicated there was no in-service dental trauma.  The Board also reiterates that only certain diseases such as osteomyelitis warrants service connection for a dental condition for compensation purposes, while other such as periodontal disease does not.  The determination of a specific dental disease is the type of matter that requires competent medical evidence to resolve, and the Veteran is not competent to provide such evidence.  

A thorough review of the record does not show the Veteran has been diagnosed with osteomyelitis, nor is there any competent medical evidence of record which indicates that he had such a disease during his military service.  Therefore, service connection for a dental condition for compensation purposes must be denied.

Analysis -- Stuttering

In this case, the Board acknowledges that the April 2010 VA examination diagnosed the Veteran with a speech disorder of stuttering.  However, his service treatment records do not show any findings of this condition, to include his April 1991 separation of service examination.  Moreover, he indicated at the April 2010 VA examination that his stuttering developed after his 1991 separation from service.  Further, his mother testified at the June 2011 hearing that she first noticed the stuttering approximately three or four years after he got back from his 1990 to 1991 service.  See Transcript p. 12.

As already noted, the Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.  See Mense, supra; see also Maxson, supra.  The Board has already determined that service connection is not warranted based upon his purported Gulf War exposure under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, nor his purported Agent Orange exposure pursuant to 38 C.F.R. § 3.309(e).  Although he indicated that his stuttering may be secondary to his dental condition, for the reasons stated above the Board has determined that service connection is not warranted for such a condition for compensation purposes.  The law does not provide for a grant of service connection for a disability found to be secondary to a non-service-connected disability.

The Veteran has also indicated that his stuttering is a symptom of his service-connected PTSD.  However, speech impairment is among the type of symptomatology noted in evaluating this disability.  See 38 C.F.R. § 4.130, Diagnostic Code 9411.  Therefore, if it is a symptom of his PTSD, then it goes to the appropriate rating to be assigned for this service-connected disability and not whether service connection is warranted for stuttering as a separate disability.

For these reasons, the Board finds that service connection is not warranted for the Veteran's stuttering.


ORDER

Service connection for arthritis (claimed as joint/muscle pain), to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.

Service connection for a dental condition for compensation purposes, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.

Service connection for stuttering, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, as due to herbicide exposure, or as secondary to a dental disorder, is denied.

REMAND

In this case, the Board finds that further development is required with respect to the Veteran's skin claim in order to comply with the duty to assist.

The Veteran has essentially contended that he has a recurrent skin rash on his groin area that developed in 1991 or 1992.  See Transcript pp. 8-9.  Further, his April 1991 separation from service examination noted abnormal skin lower left papular area, with a notation that it was from 1990 prior to deployment.  A skin biopsy found superficial and deep dermal perivascular lymphocytic infiltrate.  In addition, Report of Medical History noted that the Veteran reported a skin rash 3 years earlier.

The Board observes, however, that as contended by the Veteran's accredited representative in February 2013, no medical examination for mobilization is present, and there was no evidence of record that the skin rash noted at separation in April 1991 was actually present in 1990.  There was also no indication of any skin problems noted on prior service examinations conducted in February 1985 or May 1989.  Further, while the Veteran was accorded a VA Gulf War Guidelines examination in April 2010 and a VA general medical examination in May 2010, the record does not reflect he was accorded a VA medical examination for the specific purpose of evaluating his skin disorder claim, to include whether the current condition is etiologically linked to the abnormality noted on the April 1991 separation examination.  Therefore, a remand is required to accord the Veteran such an examination.  See McLendon, supra; see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

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/AMC shall obtain the names and addresses of all medical care providers who have treated the Veteran for his skin disorder since December 2011.  After securing any necessary release, obtain those records not on file.

2.  After obtaining any additional records to the extent possible, the RO/AMC shall afford the Veteran a VA examination to evaluate the current nature and etiology of any skin disorder found to be present.  The claims file must be made available to the examiner for review before the examination.

Following evaluation of the Veteran, the examiner is requested to opine as to whether any of the Veteran's skin related symptoms are attributable to a known clinical diagnosis or whether these problems are manifestations of an undiagnosed illness. 

If any of the Veteran's skin related symptoms are attributable to a known clinical diagnosis/diagnoses, the examiner must express an opinion as to whether it is at least as likely as not that any current skin disorder found to be present was incurred in, aggravated by, or otherwise the result of the Veteran's active service.  This opinion must reflect consideration of the abnormal skin findings on the April 1991 separation examination.

In doing so, the examiner must consider the Veteran's competent statements as to the onset and continuity of symptomatology.  The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, citing to the lay evidence, as well as, other evidence in the record.

If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so.

If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 

The examiner must provide a complete rationale for each opinion given.

3.  The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required.  If further action is required, it should be undertaken prior to further claim adjudication.

4.  The RO/AMC will then readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure.  The Veteran need take no action until he is so informed.  He 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).  The purposes of this remand are to obtain additional information and comply with all due process considerations.  No inference should be drawn regarding the final disposition of this claim as a result of this action.

This claim must be afforded expeditious treatment.  Claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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).



______________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs