Citation Nr: 1309876 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 10-09 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a skin disability, to include due to exposure to herbicides. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from January 1969 to June 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2012, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This case was previously before the Board in September 2012 and remanded for additional development. For the reasons discussed below, in regard to the issue of entitlement to service connection for a skin disability, the Board finds that the RO substantially complied with the mandates of the September 2012 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a 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 issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a skin disability that is related to service, to include due to exposure to herbicides. CONCLUSION OF LAW A skin disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim for entitlement to service connection for a skin disability. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a letter dated in February 2008 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file, including VA treatment records from 2004 to present, as requested in the September 2012 remand. See Stegall, 11 Vet. App. at 268. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded a medical examination in October 2012 to obtain opinions as to whether any skin disability found in the examination was the result of service. A November 2012 VA addendum opinion was also obtained. The opinion was rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination and opinion are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. II. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Certain chronic disabilities, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2012). A Veteran who, during active 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 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active 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 disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson'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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal 's angina), 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. 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). III. Analysis The appellant contends that he has a skin disability that is related to service, to include due to exposure to herbicides. For the reasons that follow, the Board concludes that service connection is not warranted. At the April 2012 Board hearing, the appellant reported that he had experienced a skin problem on his legs, hands, arms and feet since service. (April 2012 Board Hearing Transcript (Tr.) at 3) He stated that when he left Vietnam in 1971, he immediately started to have dryness of the extremities. (Id.) He reported that he did not go to a doctor about it when he came back from Vietnam. The appellant has also asserted that his skin condition is due to exposure to herbicides in Vietnam. See e.g. February 2009 notice of disagreement. The appellant's VA treatment records reflect that he has been diagnosed with dry skin. See e.g. June 2012 VA treatment record. A January 2012 VA treatment record reflects that the appellant had been prescribed hydracetin moisturizing cream for dry skin. The appellant's service personnel records reflect that he served in Vietnam from June 1970 to April 1971. Therefore, it is presumed that he was exposed to herbicides. Moreover, affirmative evidence does not exist to rebut that presumption. Despite presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is not warranted. In the present case, the clinical evidence of record does not reflect that the appellant has a skin disability which is listed by VA as a disability for which presumptive service connection is warranted. As the appellant does not have a diagnosed disability among the diseases recognized under 38 C.F.R. § 3.309(e) as a disease associated with exposure to certain herbicide agents, presumptive service connection on the basis of herbicide exposure is not warranted. The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The appellant's service treatment records are silent for any complaints or diagnoses of a skin disability. A January 1969 enlistment examination report reflects that the appellant's skin was normal. A May 1972 discharge examination report also reflects that the appellant's skin was normal. At the Board hearing the appellant stated that his doctor had never given an opinion that the appellant's dry skin was due to exposure to chemicals in service, to include Agent Orange. (Tr. at 4) The appellant has asserted that he has had dry skin since service. (Tr. at 3) As noted above, the appellant's service treatment records, including his discharge examination report did not indicate that he had any skin problems, to include dry skin. The appellant reported that he did not go to a doctor for his skin condition when he was in service. The appellant is competent to report that he had dry skin in service and the Board finds his statements to be credible in this regard. An October 2009 VA treatment record reflects that the appellant had a diagnosis of dermatitis. A May 2011 VA treatment record indicates the appellant had pleurisy/dermatitis or eczema. A June 2012 VA treatment record reflects that the appellant had an active problem of dermatitis or eczema, diagnosed in May 2011. An October 2012 VA examination report reflects that the appellant had dermatitis. The examiner noted that the date of diagnosis was 1971. The report reflects that the appellant reported a history of scaling on his hands and feet. He used a cream periodically. The rash had mostly cleared that day. The examiner found the appellant had dermatitis on less than 5 percent of the total body area. The examiner noted that the exam reflected minor scaling only on the plantar surface of the feet. He also noted that the appellant's VA treatment records documented a history of dry skin and eczematous dermatitis. In a November 2012 addendum opinion, the examiner found that the appellant's dermatitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the date of diagnosis was noted as per the report from the appellant only. He stated that the appellant's most recent 2012 examination was essentially negative. The examiner stated that the documented evidence did not support the appellant's claim. Available records reflected that the appellant did not seek treatment for over 30 years following his military duty. His first documented complaint of "dry skin" was in December 2004. He was treated with Eucerin cream. The VA examiner noted that a VA treatment record dated in December 2010 documented the appellant declining a tele derm consult evaluation and a June 2012 VA treatment record documented that the appellant was working at a warehouse with indirect exposure to chemicals. As the November 2012 VA examiner provided a rationale for the opinion, the Board finds the opinion to be probative. The appellant has asserted that he has had continuous symptoms of dry skin since service. Under 38 C.F.R. § 3.303(b), service connection may be granted for specific chronic diseases recognized in 38 C.F.R. § 3.309(a) following a showing of continuity of symptomatology after service. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Dry skin, eczema and dermatitis are not disabilities listed as chronic in 38 C.F.R. § 3.309(a). Thus, although the appellant has asserted that he had continuous symptoms of a skin condition, service connection may not be granted on that basis. Based on the evidence of record, the Board finds that service connection for a skin disability is not warranted, including due to exposure to herbicides. The appellant is competent to report symptoms of dry skin in service. He has also reported that he has had symptoms of dry skin since service. However, as discussed above, service connection may not be granted for dermatitis based on continuity of symptomatology since service under 38 C.F.R. § 3.303(b). Further, there is no evidence of a nexus between the appellant's current skin disability and service. The November 2012 VA opinion reflects that it was less likely than not that the appellant's skin disability was incurred in or caused by the claimed in-service injury, event or illness. As the examiner provided a rationale for the opinion, the Board finds the opinion to be probative. The appellant has contended that his skin disability is related to service due to his exposure to herbicides. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of dermatitis, including due to exposure to herbicides, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The November 2012 VA examiner has education, training and experience in evaluating the etiology of a skin disorder. In sum, presumptive service connection based on exposure to herbicides is not warranted for the appellant's skin condition or continuity of symptoms since service, and there is no clinical evidence of record that the appellant has a skin disability that is causally related to active service, to include due to herbicide exposure. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a skin disability, to include due to exposure to herbicides, is denied. REMAND As requested in the September 2012 remand, the appellant's right knee was evaluated at a VA examination in October 2012. The VA examiner found the appellant had right knee strain, diagnosed in 1971. The VA examiner found that the appellant's right knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the appellant's account of his history appeared to be credible. The examiner stated that "[h]owever, current right knee imaging does not reveal any chronic changes associated with previous injury or trauma to his right knee specifically." The Board finds the VA opinion is inadequate. The VA examination report reflects that imaging studies of the knee were not performed. The appellant's VA treatment records do not reflect that any imaging studies were performed recently. Thus, it is unclear as to which imaging studies the examiner was referring. A December 2004 VA treatment record indicated the appellant had knee osteoarthritis, but the VA examiner did not note this. As the VA examiner's rationale for his opinion relies solely on the fact that right knee imaging did not reveal chronic changes and it does not appear any imaging studies of the knee were performed at the time of the VA examination, the Board finds the opinion is inadequate. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the October 2012 VA examination is inadequate, the claim must be remanded for a clarifying opinion. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file and a copy of this remand to the VA examiner who performed the right knee examination in October 2012, or, if unavailable, to an appropriate clinician to determine whether the appellant has a right knee disability that is at least as likely as not (meaning likelihood of at least 50 percent) related to service. The examiner should clarify what knee imaging studies he referenced in the rationale for the October 2012 opinion. If the examiner determines that another examination of the right knee, including X-rays, is necessary to determine the claim, such should be accomplished. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. For the purposes of the examination, the examiner should assume that the appellant's statements regarding his knee injury in service are credible. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for a right knee disability. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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 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). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs