Citation Nr: 1308075 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 08-32 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a skin disorder, to include as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969 and from March 1974 to July 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Other issues which were on appeal were decided in a December 2011 Board decision, which remanded the issues currently on appeal to the RO for further development. That decision also reopened the previously denied back claim. FINDINGS OF FACT 1. The Veteran's current back disorder was not manifest in service, arthritis of the spine was not manifest to a degree of 10 percent within one year of separation, and the current back disorder is unrelated to service. 2. The Veteran's current skin disorder was not manifest in service, is unrelated to service, and was not caused or aggravated by the Veteran's service-connected diabetes mellitus. 3. The Veteran's current hypertension was not manifest in service or to a degree of 10 percent within one year of separation, is unrelated to service, and was not caused or aggravated by the Veteran's service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a skin disorder are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.310 (2012). 3. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran with adequate VCAA notice by letters dated in April 2007, September 2007, April 2010, May 2010, and November 2010. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While not all of the required notice was provided prior to the initial adjudications, adequate notice was followed by subsequent adjudications, curing the timing defects. Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the disabilities at issue in August 2007, August 2010, and February 2012; and afforded the Veteran the opportunity to give testimony before the Board. Adequate medical opinions were given as they were in conjunction with review and consideration of relevant information. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's March 2010 remand by providing corrective VCAA notice, obtaining VA medical records, examining the Veteran and furnishing the required nexus opinions, and readjudicating the claims. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis and cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases are presumed to have been incurred in service due to in-service Agent Orange exposure. Tinea versicolor, psoriasis, and hypertension are not among them. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Service connection is in effect for diabetes mellitus. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Board has considered all evidence of record. No medical evidence is available on Virtual VA (VA's electronic data storage system) at this time. Back Service treatment records are silent for reference to back problems. The Veteran denied having or having had back trouble on service examinations in December 1973 and May 1979, and his examinations revealed a normal back at those times. On VA examination in October 1979, no back complaints or problems were reported. In June 1980, the Veteran's representative reported that the Veteran had suffered an injury to his back as a result of a service-connected leg condition. There is a July 1980 report of VA X-rays of the lumbar spine showing bilateral L5 spondylolysis with grade 1-2 spondylolisthesis on sacrum, reportedly unchanged since an examination in June 1980. The Veteran was seen for a flare of chronic low back pain for 4 days in January 1984. In September 1984, the Veteran stated that he had degenerative back problems due to an old injury. He injured his back when he fell off a truck while stationed at Ft. Hood, Texas, and was treated at Ft. Hood. On VA examination in February 2012, the Veteran's claims folder was reviewed and the Veteran was examined and found to have a back disability. The examiner opined that it was less likely than not incurred in or caused by an in-service injury, event, or illness. The reasoning was that review of the Veteran's service treatment records revealed no documentation of evaluation or treatment of back pain. The examiner felt that it was more likely than not that the Veteran's current lumbar spine condition was related to a developmental anatomic anomaly and chronic degenerative changes associated with aging. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current back disorder. It was not manifest in service, has not been related to service, and was not manifest to a degree of 10 percent within one year of separation. The Veteran argues that it was due to an in-service injury. However, he denied having had any back problems on service examinations, and was found to be normal on service examinations including the discharge examination in May 1979, and he did not claim service connection for back problems in August 1979 when he claimed another problem. Based on the evidence, the Board finds that there was no in-service back injury and there was no continuity of symptoms since service. Regarding arthritis, the evidence does not show that it was manifest to a degree of 10 percent within one year of separation. Thus, the presumption of service incurrence for it does not apply. Accordingly, the criteria for service connection for a back disorder are not met. Skin Service treatment records are silent for reference to skin problems. The Veteran denied having or having had skin diseases on service examinations in December 1973 and May 1979, and his examinations revealed normal skin at those times. On VA examination in October 1979, no skin complaints or problems were reported. No skin disorders are reported in post-service medical records through 1984. The first indication of a skin disease was in March 1987, when the Veteran reported that his feet had been breaking out for about a week. He had had athletic's foot in the past, but this was not like that. Eczema and tinea were diagnosed. In April 1989, the Veteran reported that he developed a skin condition on his upper arms and back, and that he was wondering if it was from Agent Orange. Tinea corporis and versicolor were diagnosed. Treatment since then is shown. On VA examination in August 2010, the Veteran reported that a skin rash on his abdomen was first seen in 1991. The examiner concluded that it was less likely than not that his skin rash was related to service as it was first diagnosed after the Veteran was discharged from service. It was also less likely than not that his skin rash was related to herbicide exposure as it had not been associated with exposure to date, and his symptoms were not suggestive of chloracne. It was less likely than not that it was related to diabetes mellitus as it preceded the onset of his diabetes mellitus. It was less likely than not that it was aggravated by diabetes mellitus because it was not evident at that time. In November 2010, a VA examiner indicated that service treatment records do not show any Agent Orange related skin condition, and that the Veteran had a current diagnosis of tinea versicolor which was not being treated. The examiner concluded that the Veteran had no skin disorder related to Agent Orange. On VA dermatology examination in February 2012, the examiner indicated that the Veteran does not have chloracne and that it was less likely than not that the Veteran's tinea or psoriasis was incurred in or related to service, as review of the service treatment records showed no documentation or evaluation or treatment for either. The examiner also concluded that the Veteran's skin disease was less likely than not proximately due to or aggravated as the result of the Veteran's service-connected diabetes mellitus, as a review of the literature revealed no causal correlation of tinea versicolor or psoriasis with diabetes mellitus. Based on the evidence, the Board concludes that service connection is not warranted for skin disorder. The Veteran's current skin diseases are not shown in service treatment records, and the medical opinions of record indicate that they are unrelated to any incident of service, including Agent Orange exposure, and were not caused or aggravated by the Veteran's service-connected diabetes mellitus. Reasons were provided for the medical opinions of record, and there are no competent medical opinions of record to the contrary. Moreover, there is no presumption of service connection for the skin disorders shown. Accordingly, the criteria for service connection for a skin disorder are not met. Hypertension Service treatment records do not show hypertension. To the contrary, the Veteran's blood pressure was well below 140/90 on all instances measured in service, including on service discharge examination in May 1979. The Veteran denied having or having had high blood pressure at that time, and his examination was normal. As late as August 1991, the Veteran's blood pressure was 130/70. The Veteran had a blood pressure reading of 150/100 on VA evaluation in September 1991. Hypertension was assessed on VA evaluation in December 2000. At that time, his blood pressure was 141/85. He reported that he was followed by a family physician who was treating him with Lipitor and Vasotec. The Veteran was on no treatment for diabetes mellitus, although he mistakenly thought that Lipitor was for diabetes mellitus. In March 2005, his diabetes mellitus was uncontrolled, but his blood pressure was 136/72. In March 2006, he was referred for assistance with management of nephropathy. On VA examination in August 2007, the Veteran's diabetes and hypertension medical histories were reviewed and it was reported that he was diagnosed with hypertension at the same time as he was diagnosed with diabetes mellitus. The diagnoses were diabetes mellitus and hypertension, with hypertension being less likely than not related to diabetes mellitus since they were diagnosed at the same time. On VA examination in August 2010, the Veteran reported that hypertension was discovered on examination in 1986, when medication was begun. The impression was hypertension less likely than not related to service, as it was first diagnosed after service discharge. It was less likely than not that the Veteran's hypertension was related herbicide exposure as it had not been associated with exposure to date. It was less likely than not that the Veteran's hypertension was related to diabetes mellitus as it preceded diabetes mellitus. It was less likely than not that his hypertension was aggravated by diabetes as his hypertension was well controlled on medication. A November 2010 VA examination addendum notes that service treatment records showed no elevated blood pressure, and states that the onset of hypertension pre-dated diabetes. The opinion was that the Veteran's essential hypertension was not related to diabetes, as diabetes is not known to cause hypertension. On VA examination in February 2012, the Veteran's medical history was reviewed and it was opined that the Veteran's essential hypertension was less likely than not incurred in or related to service, as service treatment records showed no documentation, evaluation, or treatment of it. It was opined that it was less likely than not that the Veteran's hypertension was proximately due to or the result of his service-connected diabetes mellitus. The Veteran was under treatment for hypertension in 2000, according to CPRS records, and this was before he was diagnosed with diabetes mellitus. The current severity of the Veteran's hypertension was not greater than its baseline level. The Board has noted that the Veteran's representative requested that another opinion be obtained specifically to determine whether nephropathy associated with diabetes had aggravated hypertension. However, in the absence of any increase in severity of the hypertension, there is no reason to obtain an opinion regarding the cause of any such increase. Based on the evidence, the Board concludes that service connection is not warranted for hypertension. It was not manifest in service or to a degree of 10 percent within one year of service separation. Moreover, the medical evidence of record indicates that it is unrelated to any incident of service, including Agent Orange exposure, and that it was not caused or aggravated by the Veteran's service-connected diabetes mellitus. The preponderance of the evidence indicates that it preceded his diabetes mellitus. Therefore, it could not have been caused by it. Moreover, it is at its baseline level now, so an increase in the severity of it due to his service-connected diabetes mellitus could not possibly be present. Accordingly, the criteria for service connection for hypertension are not met. The doctrine of reasonable doubt has been considered. However, the preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for a back disorder is not warranted. Service connection for a skin disorder is not warranted. Service connection for hypertension is not warranted. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs