Citation Nr: 1312233 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 08-35 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a skin disability, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from September 1965 to June 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Togus, Maine. In that decision, the RO denied entitlement to service connection for various skin diseases. This appeal was previously before the Board in July 2012 at which time it was remanded for additional development. The most recent supplemental statement of the case (SSOC) was issued in February 2013. The Veteran has submitted over one hundred pages of material since the issuance of this SSOC. He did not submit a waiver of RO review of this material. However, a careful review of this material demonstrates that a remand for initial RO consideration is not required. The vast majority of the material consists of copies of private medical records that were previously submitted to the Board and considered prior to the February 2013 SSOC. There are two exceptions, but for the following reasons remand is not required. The first exception is the medical records the Veteran sent showing treatment for his wife, daughter, and son. These are not pertinent to the Veteran's claim, and need not be considered by the RO. The second exception is a February 2013 treatment record from Dr. R.J.M. with Dermatology Associates. However, this record merely show ongoing treatment for the same skin disabilities for which a current diagnosis has already been established. As will be demonstrated, the current diagnoses are not at issue, and records from Dermatology Associates dating back to at least 2004 are already in the claims folder. Instead, this appeal will turn on the etiology of the Veteran's well established disabilities, and this is not addressed by the February 2013 treatment record. Therefore, as the February 2013 record is cumulative of the evidence already of record, a remand for initial RO consideration is not required, and the Board can proceed with adjudication of the Veteran's appeal without fear of prejudice to his claim. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The issue of financial compensation for disabilities of the Veteran's family due to his exposure to Agent Orange has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran had service in Vietnam and is presumed to have been exposed to herbicides such as Agent Orange. 3. The Veteran does not have a current diagnosis of a disability that is presumed to be related to herbicides such as Agent Orange. 4. The Veteran's current skin disabilities are not the result of a disease or injury in active service. CONCLUSION OF LAW A skin disability was not incurred due to active service, nor may it be presumed to have been incurred due to herbicide exposure during active service. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2005). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with letters in November 2007 and February 2008 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. These letters were provided to the Veteran prior to the initial adjudication of his claim. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records have been obtained, including from all of the sources noted in the July 2012 remand. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. The Board's remand was for efforts to obtain records of private treatment reported by the Veteran and if additional records were obtained to refer the claims folder to a VA examiner for an addendum opinion. The Veteran subsequently submitted authorizations for VA to obtain private treatment records and records from all but one of the providers were received. One physician responded that the Veteran was not his patient. The records were then referred to a VA physician. That physician provided an opinion was provided in January 2013. The physician opined that the identified skin disorders were not related to Agent Orange exposure, because the identified disorders were not recognized by "DOD" as being related to Agent Orange exposure. The physician then listed disabilities contained in VA regulations that have been recognized as presumptively due to herbicide exposure. This opinion was inadequate, because the examiner failed to recognize that service connection was possible for the skin conditions other than under the presumptive laws and regulations referable to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Stegall v. West, 11 Vet. App. 268 (1998). This failure on the examiner's part was not prejudicial; however, because another VA physician had conducted an examination in 2008, had considered all of the same skin disabilities and reported that they could not be related to Agent Orange exposure because his research into the scientific studies showed no established link between the disabilities and that substance. No examiner has explicitly considered whether the claimed skin conditions could otherwise be related to service, but the Veteran has not contended that the claimed conditions could otherwise be related to service, and there is no other evidence suggesting that the disabilities could otherwise be related to service. There is no evidence or contention that the skin conditions were present in service or for a number of years thereafter. At this point it does not appear that there is any further assistance or notice that would be reasonably likely to aid the Veteran in substantiating the claim. Service Connection The Veteran contends that he has developed several different skin disabilities to include lipomas, actinic keratosis, and skin cancers due to exposure to Agent Orange during his service in Vietnam. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. This method may be used only for the chronic diseases noted in 38 U.S.C.A. § 1101, 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These provisions would apply to malignant tumors, and the Veteran's skin diseases include squamous and basal cell carcinoma, which could be considered malignant tumors. There is; however, no indication of a continuity of symptomatology, inasmuch as the Veteran reported the onset of skin diseases no earlier than the 1980's (see his October 2007 claim). In meeting its responsibility to weigh the credibility and probative value of the evidence, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). In assessing medical opinions, the failure of the physician to provide a basis for the opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999), and a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions such whether or not a skin disability is related to Agent Orange exposure, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Veteran believes that his disabilities are the result of exposure to herbicides such as Agent Orange during service. A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. 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 Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service; chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of the tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. 38 C.F.R. § 3.309(e). For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases listed at § 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. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Stefl; see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). A review of the evidence indicates that the Veteran has submitted private and VA medical records that show treatment for various skin disabilities dating from March 1988. These disabilities have received many different diagnoses, including lipomas; skin rashes; seborrheic actinic keratosis; benign lentigo; benign neurofibromatosis; squamous cell cancer of the skin; and basal cell cancers of the skin. The evidence also shows more or less continuous treatment for his various skin disabilities from March 1988 to March 2013. Therefore, the requirement of medical evidence of a current skin disability is well established. However, in order to establish service connection for a disability, it is not sufficient to merely show the presence of a current disability. There must also be evidence that the disability in question was incurred during service, and that there is a relationship between the disease, injury, or event in service and the claimed current manifestation of that disease, injury, or event. In this case, there is no evidence of a disease, injury or event involving the skin in service, and no evidence of a relationship between any event during service and any of the Veteran's current disabilities. A review of the Veteran's service treatment records is negative for any diagnosis of a skin disability. The Veteran did not register any complaints regarding his skin, and he did not receive any treatment for a skin condition. The May 1968 discharge examination found the skin to be normal, and the Veteran denied all relevant history on a Report of Medical History completed at that time. Moreover, there is no competent medical opinion that relates any of the Veteran's various current skin disabilities to active service, exclusive of herbicide exposure. Therefore, there is no basis for service connection for a skin disability without consideration of the effects of exposure to herbicides such as Agent Orange. The Veteran is verified as having service within the Republic of Vietnam. Therefore, he is presumed to have been exposed to herbicides such as Agent Orange, and an in-service event is demonstrated. 38 C.F.R. § 3.307. The Veteran has not been found to have any of the skin disabilities that are presumed to be the result of Agent Orange exposure. These disabilities include chloracne or other acneform disease that is consistent with chloracne, and porphyria cutanea tarda. Therefore, he is not entitled to service connection on a presumptive basis. 38 C.F.R. § 3.309(e). There is also no competent medical evidence that relates any of the Veteran's various skin disabilities to herbicide exposure during service. The opinion that is most favorable to the Veteran is that of a VA physician, Dr. R.A.A., who notes in a May 2008 record that the Veteran has a history of multiple basal cell carcinomas and squamous cell carcinomas excised and actinic keratoses that had been treated with liquid nitrogen. Dr. R.A.A. opined that the Veteran's skin conditions ".....could possibly be a result of previous agent orange exposure while in Vietnam." In contrast, one of the Veteran's private physicians, Dr. D.J.B., wrote in May 2008 that the Veteran had requested a letter supporting a connection between Agent Orange exposure in Vietnam and skin cancer. This doctor indicated he had reviewed material regarding potential association with Agent Orange and skin cancer, which suggested that the majority of the studies were inconclusive or show no causative linking of the two issues. The Veteran was afforded a December 2008 VA examination of his skin. The examiner wrote that a very extensive evaluation of the available material was reviewed. This included the May 2008 opinion from Dr. R.A.A. The December 2008 examiner opined that he knew of no scientific information that associated exposure to Agent Orange to the development of lipomas; skin rashes of an uncertain etiology; seborrheic keratosis; benign lentigo; benign neurofibromatosis; squamous cell cancer of the skin; or basal cell carcinoma of the skin. There was no scientific evidence that associated these issues with exposure to Agent Orange. Therefore, it was less likely than not that the Veteran's multiple skin problems were caused by or a result of exposure to Agent Orange while serving in Vietnam. After the receipt of the additional material sought by the July 2012 remand, the claims folder was forwarded to another VA examiner for review. After review, the examiner again opined that it was less likely than not that the Veteran's diagnosed skin conditions of lipomas; skin rashes; seborrheic actinic keratosis; benign lentigo; benign neurofibromatosis; squamous cell cancer of the skin; and basal cell cancer of the skin to include any skin disease diagnosed since 2007 was caused by, related to, or aggravated by the Veteran's conceded exposure to Agent Orange while serving in the Republic of Vietnam. The rationale was that the Veteran's diagnosed skin disabilities were not among those that were recognized as related to exposure to Agent Orange. As previously noted this opinion was inadequate and is of little probative value. Dr. R.A.A.'s opinion is also of little probative value, because it is inconclusive and does not provide a rationale for the conclusion that the skin conditions "could possibly" be related to Agent Orange exposure. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The most probative opinions were provided by the Dr. J.B.B. and the physician who provided the December 2008, VA examination. They took into account the Veteran's reports and an accurate history. They provided opinions based on the history and medical and scientific knowledge. Those opinions are against a link between the current disabilities and Agent Orange exposure. The Veteran's opinion that his disabilities are the result of exposure to Agent Orange has been considered, but as previously noted he is not competent to express an opinion regarding the complex medical questions that are raised in this case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The basal and squamous cell carcinoma was not identified in service or in the year following service and the Veteran has not reported evidence of these conditions until the 1980's. Hence, service connection would not be available for these diseases on the basis of the presumptions afforded chronic diseases. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309. As the most probative evidence is against a link between the current skin disabilities and herbicide exposure; and there is no evidence that the skin conditions are otherwise related to service; the preponderance of the evidence is against the claim, reasonable doubt does not arise and the appeal is denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a skin disability to include as secondary to herbicide exposure is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs